Petition for Writ of Certiorari — Rick E. Brown, Petitioner v. United States

Supreme Court briefMay 21, 2018

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APPENDIX A

United States v. Brown, 880 F.3d 399 (2018)

Med & Med GD (CCH) P 306,212

Application of guidelines

To ensure that a sentencing judge did not

commit any significant procedural error, the

Court of Appeals examines whether the

District Court: (1) properly calculated the

Sentencing Guidelines range; (2) recognized

that the Guidelines range was not mandatory;

(3) considered the statutory sentencing

factors; (4) selected a sentence based on

facts that were not clearly erroneous; and

(5) adequately explained the chosen sentence

including an explanation for any deviation

from the Guidelines range. 18 U.S.C.A. §

3553(a).

880 F.3d 399

United States Court of Appeals, Seventh Circuit.

UNITED STATES of America, Plaintiff-Appellee,

Rick E. BROWN & Mary C.

Talaga, Defendants-Appellants.

Nos. 15-3117 & 15-3261

Argued May 23, 2017

Decided January 19, 2018

Synopsis

Background: Defendants were convicted in the United

States District Court for the Northern District of Illinois,

Gary Feinerman, J., of conspiracy to commit healthcare fraud, health-care fraud, and falsifying a matter or

providing false statements. Defendants appealed.

Cases that cite this headnote

[3]

Sentencing and Punishment

Deterrence

District court did not err in relying

on idea that white-collar criminals were

prime candidates for general deterrence as

one statutory sentencing factor supporting

imposition of 87-month sentence for

defendant's role in health care fraud

conspiracy, which was 34 months below

the Sentencing Guidelines range; district

court was entitled to conclude that, given

that health-care fraud was widespread and

that therefore there was a lower likelihood

of getting caught, a serious penalty was

necessary to ensure deterrence. 18 U.S.C.A. §

3553(a).

Holdings: The Court of Appeals, Ripple, Circuit Judge,

held that:

[1] district court err in relying on idea that white-collar

criminals are prime candidates for general deterrence, and

[2] record supported sentencing court's conclusion that

second defendant knew that her billing submissions were

fraudulent when she began working for company.

Affirmed.

Cases that cite this headnote

West Headnotes (6)

[4]

Sentencing and Punishment

Evidence

[1]

Sentencing judges cannot be expected to rely

on evidence not before them.

Criminal Law

Review De Novo

Whether a District Court followed proper

sentencing procedure is a question of law that

the Court of Appeals reviews de novo.

1 Cases that cite this headnote

[2]

Criminal Law

Cases that cite this headnote

[5]

Sentencing and Punishment

Sufficiency

Record

supported

sentencing

court's

conclusion that defendant, who was

responsible for medical billing for company

United States v. Brown, 880 F.3d 399 (2018)

Med & Med GD (CCH) P 306,212

that provided home physician visits to

patients, knew her billing submissions to

Medicare were fraudulent when she began

working for company, in calculating loss

arising from her role in conspiracy to commit

health care fraud; defendant was experienced

Medicare biller when she began working

at company, had training in Medicare

billing, was intimately familiar with billing

procedures of the medical practice, and had

completed course on medical billing. 18

U.S.C.A. § 1349.

Cases that cite this headnote

[6]

Criminal Law

Sentencing

The Court of Appeals reviews the District

Court's determination of loss for clear error

and will reverse the District Court only if it is

left with the definite and firm conviction that

a mistake was made.

Cases that cite this headnote

*400 Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division,

Nos. 1:13-cr-00854-1, 1:13-cr-00854-3 — Gary Feinerman,

Judge.

A grand jury indicted Rick E. Brown and Mary C.

Talaga with one count of conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1349, six counts

of health-care fraud, in violation of 18 U.S.C. § 1347,

and three counts of falsifying a matter or providing false

statements, in violation of 18 U.S.C. § 1035(a). A jury

convicted them on all counts. The district court sentenced

Mr. Brown to eighty-seven months' imprisonment on

the health-care fraud counts and terms of sixty *401

months' imprisonment on each of the falsification counts

to run concurrently with each other and with the fraud

counts. In doing so, the district court explained that a

significant sentence was warranted for several reasons,

including general deterrence. Ms. Talaga was sentenced

to concurrent forty-five-month sentences on all of the ten

counts.

Both defendants now maintain that the district court

erred in imposing their respective sentences. Mr. Brown

maintains that the district court's assumptions about

the need for general deterrence were unfounded and

constituted procedural error. Ms. Talaga argues that,

when the district court calculated the amount of loss

for which she was responsible, it impermissibly included

losses that occurred before she joined the conspiracy.

The inclusion of these amounts resulted in a higher loss

amount, corresponding to a higher offense level and

sentence.

Because the district court did not err in its reasoning or in

its sentencing determination, we affirm its judgments.

Attorneys and Law Firms

Joanna K. W. Bowman, Attorney, Ellen Meltzer,

Attorney, Department Of Justice, Criminal Division,

Fraud Section, Washington, DC, Kevin R. Gingras,

Attorney, Department of Justice, Criminal Division,

Washington, DC, Plaintiff–Appellee.

Carol A. Brook, Attorney, Rosalie L. Guimaraes,

Attorney, Office of the Federal Defender Program, for

Defendant–Appellant.

Before Bauer, Easterbrook, and Ripple, Circuit Judges.

Opinion

Ripple, Circuit Judge.

BACKGROUND

Medicall Physicians Group, Ltd. (“Medicall”), a company

that provided home physician visits to patients, employed

both Mr. Brown and Ms. Talaga. Mr. Brown served

as Medicall's office manager, and Ms. Talaga had

responsibility for medical billing. Dr. Roger Lucero, a

third defendant, was the owner and medical director of

the company. He pleaded guilty to the conspiracy count,

cooperated with the Government, and testified against

both Mr. Brown and Ms. Talaga.

United States v. Brown, 880 F.3d 399 (2018)

Med & Med GD (CCH) P 306,212

Beginning at least as early as January 2007, Mr. Brown

and Dr. Lucero began submitting false and fraudulent

claims to Medicare. Ms. Talaga, who had been trained

as a medical biller, joined Medicall in August 2007. She

reported to Mr. Brown and was paid a percentage of

Medicall's earnings.

According to the evidence, the fraud at Medicall took at

least three forms. First, Mr. Brown and Ms. Talaga billed

Medicare for “prolonged” visits, using the prolonged

care code, as a way to pay for employees' travel time.

Second, regardless whether the patient qualified for, or

received, the billed-for care, every patient was billed for

“Care Plan Oversight,” a type of physician supervision

for patients requiring complex or multi-disciplinary care.

Finally, Mr. Brown and Ms. Talaga billed Medicare for

services purportedly provided to deceased patients, as well

as services by providers who no longer were associated

with Medicall.

After hearing the evidence, the jury convicted both

defendants on all counts of the indictment.

1. Mr. Brown

The probation office prepared a presentence report

(“PSR”) for Mr. Brown. The PSR calculated a base

offense level of six under U.S.S.G. § 2B1.1(a)(2), and then

applied an eighteen-level increase under § 2B1.1(b)(1)(J)

for an intended loss of approximately $4.3 million. The

PSR also applied (1) a two-level increase for a federal

health-care offense involving a loss of more than $1

million but less than $7 million; (2) a two-level increase

for use of sophisticated means; (3) a four-level increase for

being a leader or organizer; and (4) a two-level increase

for obstruction of justice because Mr. Brown had testified

falsely at trial about his role in the offense. These increases

yielded a total offense level of thirty-four that, when

combined with Mr. Brown's criminal history category of

I, *402 yielded a sentencing range of 151 to 188 months.

Mr. Brown objected to various aspects of the PSR's

calculation. The district court agreed with Mr. Brown

that the fraud did not involve sophisticated means. It

also gave Mr. Brown the benefit of the loss table in the

new Guidelines, which yielded a sixteen-level increase,

as opposed to an eighteen-level increase, for amount of

loss. When combined with Mr. Brown's criminal history

category, the new calculation yielded a guidelines range of

121 to 151 months.

The district court then considered “the 3553(a) factors

one by one.” 1 It also observed that “[s]ubsection (a)

(2) requires the Court to consider the need for the

sentence imposed to accomplish the various purposes of

criminal punishment. The first purpose is to reflect the

seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense.” 2 The

court considered the crimes to be “serious” because they

occurred “over an extended period of time” and involved

“$4.3 million in false claims.” 3 The second purpose

articulated in 18 U.S.C. § 3553(a) “is to afford adequate

deterrence to criminal conduct.” 4 The court considered

this purpose “a significant factor” because Medicare fraud

unfortunately is widespread “in this country; and those

who are in the medical field and who are tempted to

engage in fraud must know, they have to know, that the

penalties are severe, particularly given the low likelihood

of getting caught.” 5 The court stated that it agreed with

the Government

that people in the healthcare

business and in the home healthcare

business in particular will know

about this sentence, and this

sentence has to send a signal. It's not

the only consideration, and it's not

the most important consideration,

but it is a consideration that 3553(a)

(2)(B) directs me to consider, and I

do have to consider that. [ 6 ]

Finally, the court noted that, with respect to specific

deterrence, it was “highly unlikely” that Mr. Brown would

commit a crime in the future. 7 The court then sentenced

Mr. Brown to eighty-seven months' imprisonment.

The court reiterated many of these considerations in its

oral statement of reasons:

I don't think that anything less than 87 months would

be sufficient to fulfill the purposes of 3553(a), and

here's why: The duration of the scheme. It went on for

several years. This wasn't a momentary slip ....This was

a sustained course of knowing criminal conduct.

United States v. Brown, 880 F.3d 399 (2018)

Med & Med GD (CCH) P 306,212

The amount actually stolen, over $1.3 million. That's a

lot of money.

I'm going to come back to general deterrence. This is a

white collar crime, so the sentence imposed here is far

more likely to have a deterrent effect on Mr. Brown's

cohorts, those also involved in the medical profession,

than a sentence in a drug case or an illegal re-entry case.

I do agree ... that people in the healthcare field, people

who are business—men and women who are business

people, they engage in a cost/benefit analysis. And the

benefit is the benefit if you don't get caught, and the cost

is the *403 probability of getting caught multiplied by

the sanction.

And there's a low probability of getting caught, so the

sanction has to be serious. It has to be real, if there's any

hope of ensuring that at least when people look at the

cost and the benefits, when they're contemplating fraud,

that they realize that cost will outweigh the benefits.

And finally, there's Mr. Brown's failure to accept

responsibility, and in particular his repetition of the

claim ... that he wasn't responsible for the fraud. [ 8 ]

2. Ms. Talaga

The probation office also prepared a PSR for Ms. Talaga.

It set her base offense level at six pursuant to § 2B1.1,

and applied an eighteen-level increase for the amount of

loss (greater than $2.5 million, but less than $7 million). It

also included a two-level increase for use of sophisticated

means and a two-level increase for a federal health-care

offense. These de-terminations yielded an offense level of

twenty-eight that, when combined with a criminal history

category of I, yielded a guidelines range of seventy-eight

to ninety-seven months.

Ms. Talaga objected to various aspects of the PSR. Her

primary argument was that the intended loss amount

should be reduced. She submitted that her “intended

loss could not have been more than the amount that

Medicare actually paid because Ms. Talaga knew that

Medicall ... would not have obtained the full $4M+ that

Medicall ... fraudulently billed.” 9 Specifically, she noted

that an application note to the fraud guideline states “that

the aggregate dollar amount of fraudulent bills ‘is evidence

sufficient to establish the amount of [the] intended loss, if

not rebutted’ by the defendant.” 10 She claimed that

[u]nlike co-defendants Rick Brown and Dr. Roger

Lucero, [she] “was intimately familiar with the billing

procedures of the medical practice” as well as

with 42 U.S.C. § 1395w-4(a)(1), which provides that

Medicare can never pay any more than “the amount

determined under the Medicare fee schedule.” The

Government's own investigation establishes that Ms.

Talaga successfully completed “Medical Billing,” a

course at Triton Junior College, and the “Medical

Billing” course syllabus explains than the course is “all

about Medicare and medical billing problems,” but

that the course covers mostly Medicare issues. Further,

Triton College staff and a Triton Medical Billing course

professor confirmed that the course “cover[s] in depth”

the Medicare regulation that Medicare can never pay

any more than the Medicare fee schedule. Even aside

from Ms. Talaga's schooling, Ms. Talaga would have

had to have under-stood Medicare's payment practices

because her income was based entirely on Medicare

payment amounts with respect to her submitted bills to

Medicare. [ 11 ]

Consequently, she claimed, she had rebutted the

Government's prima facie case.

Ms. Talaga also argued that the amount of loss should

be decreased because she did not recognize that she was

committing fraud when she first began at Medicall. 12 Ms.

Talaga pointed to the testimony of *404 another biller,

Arian Shogren, who testified that Mr. Brown told her that

all patients actually were receiving Care Plan Oversight.

At first, Shogren stated that she believed Mr. Brown;

however, “she recognized the fraud ‘at the end’ of her time

working at Medicall.” 13 Ms. Talaga submitted that she,

similarly, did not recognize the fraud at the outset.

The court accepted that, as an experienced biller, she

would be familiar with Medicare's reimbursement levels.

Therefore, concluded the court, Ms. Talaga should not

be responsible for the amount of all the false claims, but

only those that fell within the reimbursement schedule

set by Medicare. Thus Ms. Talaga's amount of loss was

reduced to $3.262 million. 14 The court also reduced Ms.

Talaga's loss amount by $222,000 for the few months

during the conspiracy that she did not work for Medicall.

United States v. Brown, 880 F.3d 399 (2018)

Med & Med GD (CCH) P 306,212

These reductions, however, did not result in a reduction

in offense level.

The court rejected Ms. Talaga's argument that she

should not be responsible for fraudulent billings from

the beginning of her tenure. 15 The court found by the

preponderance of the evidence that a seasoned and trained

medical biller would have realized, from the outset, that

not every single patient was receiving Care Plan Oversight,

that the number of hours being billed for Care Plan

Oversight could not be reconciled with the number of

actual services that Dr. Lucero was performing, and that

she did not have the required documentation for the bills

that she was submitting. 16

Giving Ms. Talaga the benefit of the upcoming amended

schedule, the court calculated a new guidelines range of

fifty-one to sixty-three months. After considering the §

3553(a) factors, the court imposed a sentence of forty-five

months' imprisonment.

Both Mr. Brown and Ms. Talaga timely appealed their

sentences.

explained the chosen sentence

including an explanation for any

deviation from the Guidelines range.

United States v. Lockwood, 840 F.3d 896, 900 (7th Cir.

2016) (quoting Gall v. United States, 552 U.S. 38, 53, 128

S.Ct. 586, 169 L.Ed.2d 445 (2007)). We consider first Mr.

Brown's claim of error and then turn to Ms. Talaga's.

[3] With respect to Mr. Brown, the district court properly

calculated the *405 guidelines range, recognized its

ability to depart from the Guidelines, considered all of

the § 3553(a) factors, and imposed a sentence that was

thirty-four months below the guidelines range—a sentence

that the court characterized as “a significant downward

variance.” 17 The court noted that four factors prevented

it from departing further: the duration of the scheme, the

amount of the fraud, the need for general deterrence, and

Mr. Brown's failure to accept responsibility. 18 All of these

factors are legitimate considerations for the court to take

into account. See 18 U.S.C. § 3553(a).

Mr. Brown maintains, however, that the district

court committed procedural error because it relied on

“unfounded” assumptions in articulating a need for

DISCUSSION

general deterrence. 19 Specifically, Mr. Brown questions

the district court's belief that would-be white-collar

[1]

[2] Both Mr. Brown and Ms. Talaga maintain

criminals engage in cost-benefit analyses in deciding

that the district court committed procedural error when

whether to engage in illicit activities. He further questions

imposing their sentences. “Whether a district court

the court's application of this principle to the health-care

followed proper sentencing procedure is a question of law

context, specifically that, given the “low probability of

that we review de novo.” United States v. Olmeda-Garcia,

getting caught,” 20 a serious penalty was necessary to

613 F.3d 721, 723 (7th Cir. 2010).

deter others from engaging in this kind of crime. 21

To ensure that the sentencing

judge did not commit any

We previously have endorsed the idea that white-collar

“significant procedural error,” we

criminals “act rationally, calculating and comparing the

examine whether the district

risks and the rewards before deciding whether to engage

court: i) properly calculated the

in criminal activity.” United States v. Warner, 792 F.3d

Guidelines range; ii) recognized

847, 860–61 (7th Cir. 2015). They are, therefore, “prime

that the Guidelines range was

candidates for general deterrence.” Id. at 860 (quoting

not mandatory; iii) considered the

United States v. Peppel, 707 F.3d 627, 637 (6th Cir. 2013)).

sentencing factors in 18 U.S.C.

Our approach comports with that of our sister circuits.

§ 3553(a); iv) selected a sentence

See United States v. Musgrave, 761 F.3d 602, 609 (6th

based on facts that were not

Cir. 2014) (“Because economic and fraud-based crimes are

clearly erroneous; and v) adequately

more rational, cool, and calculated than sudden crimes of

United States v. Brown, 880 F.3d 399 (2018)

Med & Med GD (CCH) P 306,212

passion or opportunity, these crimes are prime candidates

for general deterrence.” (quoting Peppel, 707 F.3d at

637)); United States v. Martin, 455 F.3d 1227, 1240 (11th

Cir. 2006) (using language identical to that in Musgrave);

cf. United States v. Goffer, 721 F.3d 113, 132 (2d Cir. 2013)

(noting that “high sentences” were necessary to alter the

calculus “that insider trading ‘was a game worth playing’

”). The district court, therefore, did not err in relying on

such a widely accepted principle.

The district court was entitled to conclude that, given

that health-care fraud is widespread and that therefore

there is a lower likelihood of getting caught, a serious

penalty was necessary to ensure deterrence. At sentencing,

the Government specifically brought to the district court's

attention that “the Medicare program has imposed a

moratorium on additional companies joining the program

to provide home healthcare services because it is—the

fraud in the area is so prevalent.” 22 Mr. Brown did

not dispute this assertion, either by way of argument or

contrary evidence. *406 23 Indeed, in his brief to this

court he acknowledges that “white collar crimes such as

health care fraud, public corruption, and the like, seem to

continue unabated.” 24

[4] Mr. Brown also submits, however, that “[s]ome

press re-leases and news articles leading up to Brown's

September 2015 sentencing hearing include rather

dramatic statistics about the success of intensified law

enforcement efforts in the area of Medicare fraud.” 25

Given these increased efforts and the publicity they

received, Mr. Brown suggests that “it is difficult to

understand how the district court could have so heartily

agreed with the proposition that white-collar offenders in

Brown's field are less likely to get caught.” 26 Mr. Brown

never invited the district court's attention to these press releases and articles. Therefore, we can hardly fault the court

for not considering them. “[S]entencing judges cannot be

expected to rely on evidence not before them.” United

States v. Reibel, 688 F.3d 868, 872 (7th Cir. 2012).

Moreover, even if this material had been presented

to the district court, it would not have required the

court to alter its conclusion that those who engage

in Medicare fraud have a “low likelihood of getting

caught.” 27 In determining the importance of deterrence

in crafting a sentence, the sentencing court must answer

the situation from the perspective of the prospective

offender. From that perspective, the likelihood of getting

caught depends not simply on the amount of resources

that the Government expends on a particular type of

crime, but the frequency with which the particular

crime is committed and the ease with which it can

be committed and go undetected. Indeed, Mr. Brown

observed in his brief that “health care fraud ... seem[s] to

continue unabated.” 28 The vast size and complexity of

the Medicare program makes fraud detection especially

difficult. 29 Indeed, the unique problems faced in detecting

fraud in the home-health-care industry prompted the

Centers for Medicare & Medicaid Services to extend

its moratorium on new home-health-care agencies in

Chicago—a fact specifically brought to the district court's

attention. 30 In short, because of the magnitude of the

Medicare program, an increase in resources would not

necessarily result in a potential offender determining that

there is a meaningful increase in the likelihood *407

of detection. The district court did not err, therefore, in

resting its conclusion about the need for general deterrence

on the basis that there was a low likelihood of getting

caught for Medicare fraud.

Mr. Brown maintains, however, that his case is

indistinguishable from United States v. England, 555

F.3d 616 (7th Cir. 2009), and other cases in which we

have found error because the district court based the

sentence on unfounded assumptions. In England, the

defendant, while incarcerated, threatened witnesses over

the telephone and later was convicted of threatening force

against a witness, his brother-in-law. At sentencing, the

court articulated the belief that, had the defendant been

out on bond, he would have armed himself and used

“what degree of force ... was necessary to get them to

drop the charges against him.” Id. at 620–21 (internal

quotation marks omitted). The district court, therefore,

determined that the appropriate guideline was § 2A2.1,

“Assault with Intent to Commit Murder; Attempted

Murder,” and that the nature of the offense warranted a

sentence within the attempted-murder guideline range. Id.

at 618–19. On appeal, we evaluated whether the district

court's findings “were sufficiently ‘based on reliable

evidence’ to satisfy due process, or if they amount[ed] to

speculation, albeit informed, that f[ell] short of satisfying

due process requirements.” Id. at 622 (quoting United

States v. Santiago, 495 F.3d 820, 824 (7th Cir. 2007)). We

explained that

United States v. Brown, 880 F.3d 399 (2018)

Med & Med GD (CCH) P 306,212

[t]he preponderance of the evidence

standard satisfies due process in

a case, such as this one, where

the district court sentences a

defendant based on the guideline

for a crime the court believes the

defendant would have committed

if out of prison on bond. Simply

put, the question here is whether

a preponderance of the evidence

supports the court's belief that the

defendant would have committed the

crime. Adhering to such a standard

operates to preclude a sentencing

court from sentencing defendants

for crimes not sufficiently supported

by reliable evidence.

Id. In England, we were “unable to conclude that a

preponderance of the evidence buttresse[d] the court's

belief that England would have” committed the crime of

attempted murder because all of the defendant's family,

including the threatened witness, “testified that they

did not feel threatened by England's statements” but

“that England was merely ‘blowing off steam’ in issuing

threats.” Id. at 623. “[B]ecause the evidence appear[ed]

at least in equipoise,” the preponderance of the evidence

standard was not met. Id.

Mr. Brown's situation stands in stark contrast to the

defendant in England. In England, the district court

drew conclusions about England's individual conduct,

which were not supported by a preponderance of the

evidence, to determine England's presumptive guideline

range and then sentenced England within that range.

Here, however, the factual foundations for the district

court's guideline calculation are sound. Moreover, the

district court's statements regarding white-collar crime

and the prevalence of Medicare fraud are not unfounded

assumptions but are grounded in case law, in the record,

and in common sense. 31

*408 Here, Mr. Brown faults the district court for not

addressing and accepting his policy argument, based on

penological studies, that “it is the certainty of conviction

rather than the length of sentence that serves to deter.” 32

In the district court, the only mention of these studies was

at the sentencing hearing. Defense counsel stated:

I'll just note briefly that the statute

only requires adequate deterrence,

not maximal deterrence with the

sentence the Court imposes. And

I would also add that studies

have shown that it's really the

certainty of punishment that drives

people more in terms of deterrence

than the actual severity or even

the swiftness of the imposition of

punishment. [ 33 ]

For these reasons, counsel urged, “even a modest prison

term for Mr. Brown could send that adequate message to

society that law enforcement can and will investigate you

for Medicare fraud.” 34 The district court did not have

before it any specific studies. Indeed, Mr. Brown did not

bring specific studies to this court's attention until his reply

brief. 35

There is no question that, from a procedural perspective,

the district court addressed and rejected this argument.

In its statement of reasons, the court stated that it

“agree[d] with [Government counsel] that people in the

healthcare field ... engage in a cost/benefit analysis. And

the benefit is the benefit if you don't get caught, and the

cost is the probability of getting caught multiplied by the

sanction.” 36

The district court was under no obligation to accept or

to comment further on Mr. Brown's deterrence argument.

In United States v. Schmitz, 717 F.3d 536, 542 (7th Cir.

2013), the defendant pleaded guilty to mail fraud, and the

resulting guidelines sentence was 87 to 108 months. Before

the district court, the defendant argued that the recently

increased “penalties for fraud offenses represented a

departure from the philosophy animating the original

version of the Guidelines, namely that a short but definite

period of incarceration would suffice as a deterrent to

most white collar offenders.” Id. at 539. The district

court, without explicitly addressing *409 this argument,

sentenced Schmitz to a term of eighty-four months.

On appeal, we determined that Schmitz's argument

was “not one addressed to his own characteristics and

circumstances,” but “was a categorical challenge to the

validity of the fraud guideline, on the ground that the

severity of sentences called for by the current incarnation

United States v. Brown, 880 F.3d 399 (2018)

Med & Med GD (CCH) P 306,212

of that guideline is unsupported by any empirical data

demonstrating the need” for longer sentences. Id. at 542.

Because it was a “blanket challenge to the guideline

rather than one tailored to [the defendant's] unique

characteristics and circumstances, it [wa]s not one that the

district judge [had to] explicitly address.” Id. Moreover,

the district court “was perfectly entitled to accept the

penal philosophy embodied in the current fraud guideline

and was not obligated to explain why [it] chose to

do so.” Id.; see also United States v. Hancock, 825

F.3d 340, 344 (7th Cir. 2016) (quoting Schmitz for

the proposition that a district court need not address

Hancock's policy argument that “the Guidelines' offenselevel increases for receipt, transport, possession, or

distribution of child-pornography, fit poorly with modern

practical realities” and specifically reiterating that “the

district judge was ‘perfectly entitled to accept the penal

philosophy embodied in the current [child-pornography]

guideline’ ” (alteration in original)).

Like the district courts in Schmitz and Hancock, here the

district court was “perfectly entitled to accept the penal

philosophy embodied” in the Guidelines that societal

goals are served by increasing fraud sentences to reflect

the amount of loss, as opposed to imposing only nominal

sentences. We find no substantive or procedural error in

the district court's imposition of sentence on Mr. Brown.

“was intimately familiar with the billing procedures of the

medical practice.” 37 She also submitted documentation

of her successful completion of a course at Triton Junior

College on Medical Billing that was “all about Medicare

and medical billing problems.” 38 Consequently, she

maintained that her intended loss should be based on what

Medicare actually paid, not what was billed, because she

“knew that Medicall ... would not have obtained the full

$4M+ that [it] fraudulently billed.” 39 The district court

accepted *410 this argument to reduce Ms. Talaga's

amount of loss to $3.262 million. This same evidence

supports the district court's conclusion that Ms. Talaga

would have recognized from the outset that there was a

problem with billing every patient for Care Plan Oversight,

that the numbers of hours for Care Plan Oversight could

not be reconciled with the number of hours that the

physicians spent performing other services, and that there

was a lack of documentation to support the claims she was

submitting. 40

Having convinced the district court of her expertise, Ms.

Talaga now tries to discount the training she received. As

we already have noted, however, in addition to her formal

education, Ms. Talaga was an experienced Medicare biller

when she arrived at Medicall. There was testimony that

she performed her work quickly, that she knew how

to re-code rejected claims so that they would be paid,

and that she trained other staff. 41 The district court

reasonably concluded that, based on Ms. Talaga's training

and experience, she would have recognized, based on the

[5]

[6] We turn now to Ms. Talaga's sentence. She sheer volume of claims for Care Plan Oversight (totaling

takes issue with one of the factual bases on which the

up to three weeks per month of Dr. Lucero's time), 42 that

court's calculation of loss rests. Specifically, she claims

these claims were fraudulent.

that the district court's calculation of loss should not

include amounts for claims dating back to 2007 because

Ms. Talaga also submits that other evidence in the record

the Government did not prove that she was aware at that

undermines the court's conclusion that she would have

time that the claims were fraudulent. We review the district

recognized the fraud. Ms. Talaga points to the testimony

court's determination of loss for clear error, see United

of another Medicall biller, Arian Shogren, who stated

States v. Diamond, 378 F.3d 720, 726 (7th Cir. 2004), and

that she initially believed that all patients actually were

will reverse the district court “only if we are left with the

receiving Care Plan Oversight. However, Shogren did not

definite and firm conviction that a mistake was made,”

have experience with Medicare billing before she began

United States v. Bryant, 557 F.3d 489, 497 (7th Cir. 2009)

working at Medicall. Indeed, when she began working at

(internal quotation marks omitted).

Medicall, she was a technician who did scheduling, took

The record supports the district court's conclusion that, in

2007, Ms. Talaga would have known that her submissions

were fraudulent. Before the district court, Ms. Talaga

argued that she had training in Medicare billing and

vitals, and kept track of patients' medications. 43 Later,

she performed some billing after receiving training from

Ms. Talaga. 44 Consequently, the fact that she did not

United States v. Brown, 880 F.3d 399 (2018)

Med & Med GD (CCH) P 306,212

immediately recognize the fraud does not suggest that Ms.

Talaga, an experienced biller, also failed to do so.

Second, Ms. Talaga observes that one Government

witness, Kelly Hartung, gave conflicting definitions

of Care Plan Oversight. In her view, because

the Government's own witness could not articulate

consistently a definition for Care Plan Oversight, it “is

unrealistic” to expect that she would have been able

to recognize that the bills for Care Plan Oversight

were fraudulent. 45 However, the fact that Hartung

had difficulty articulating the definition of Care Plan

Oversight during cross-examination 46 does not negate

the fact that Ms. Talaga, as a trained Medicare biller,

knew when it was appropriate to bill for Care Plan

Oversight and knew that Care Plan Oversight bills—in

such a high volume that they represented the bulk of Dr.

Lucero's time—were fraudulent.

Ms. Talaga has not established that the district court

committed clear error in holding her responsible for

fraudulent claims from the beginning of her tenure *411

with Medicall. We therefore affirm her sentence.

Conclusion

For the foregoing reasons, we affirm the district court's

judgments with respect to the sentences of Mr. Brown and

Ms. Talaga.

AFFIRMED

All Citations

880 F.3d 399, Med & Med GD (CCH) P 306,212

Footnotes

R.386 (1:13-cr-00854-1) at 95.

Id. at 100.

Id. at 95.

Id. at 100.

Id.

Id. at 101.

Id.

Id. at 105–06.

R.242 (1:13-cr-00854-3) at 1.

Id. (quoting U.S.S.G. § 2B1.1 cmt. n.3(F)(viii)).

Id. at 3–4 (footnotes omitted).

See id. at 6.

Id. (footnote omitted).

See R.387 (1:13-cr-00854-3) at 34–35.

See id. at 29.

See id.

R.386 (1:13-cr-00854-1) at 103.

See id. at 105–06.

Appellant Brown's Br. 35.

R.386 (1:13-cr-00854-1) at 100 (observing that Medicare fraud unfortunately is widespread “in this country” and that

“those who are in the medical field and who are tempted to engage in fraud must know ... that the penalties are severe,

particularly given the low likelihood of getting caught”).

Id. at 105 (“[M]en and women who are businesspeople, they engage in a cost/benefit analysis. And the benefit is the

benefit if you don't get caught, and the cost is the probability of getting caught multiplied by the sanction.”).

Id. at 71.

Indeed, any such argument by Mr. Brown would have been unfounded because the Centers for Medicare & Medicaid

Services did extend its moratorium on new home health agencies in Chicago, among other metropolitan areas, based

on the “significant potential for fraud, waste, or abuse.” Medicare, Medicaid, and Children's Health Insurance Programs:

United States v. Brown, 880 F.3d 399 (2018)

Med & Med GD (CCH) P 306,212

Announcement of the Extension of Temporary Moratoria on Enrollment of Part B Non-Emergency Ground Ambulance

Suppliers and Home Health Agencies in Designated Geographic Locations, 82 Fed. Reg. 2363 (Jan. 9, 2017).

Appellant Brown's Br. 41.

Id. at 37–38.

Id. at 39.

R.386 (1:13-cr-00854-1) at 100.

Appellant Brown's Br. 41.

The Government Accountability Office continues to designate “Medicare as a high-risk program ... due to its size,

complexity, and susceptibility to mismanagement and improper payments.” Gov't Accountability Office, High Risk Series

520 (2017), https://www.gao.gov/assets/690/682765.pdf; see also United States v. Kuhlman, 711 F.3d 1321, 1328 (11th

Cir. 2013) (observing that “deterrence is an important factor in the sentencing calculus because health care fraud is so

rampant that the government lacks the resources to reach it all”).

See R.386 (1:13-cr-00854-1) at 71.

The other cases on which Mr. Brown relies are equally unhelpful. In United States v. Halliday, 672 F.3d 462 (7th Cir.

2012), the district court, in reviewing § 3553(a) factors, stated that “Halliday believed [child pornography] was ‘victimless’

and that he did not ‘believe any of this is criminal.’ ” Id. at 474. However, there was no evidence in the record for the court's

conclusions; the “statements about Halliday's belief that the crimes at issue were ‘victimless’ were pure speculation.” Id. at

475. Here, the court's statement about the low likelihood of being caught for health-care fraud is grounded in the fact that

Medicare fraud, and specifically home-health-care fraud, is prevalent, a fact that explicitly was raised during sentencing.

Similarly in United States v. Bradley, 628 F.3d 394, 395 (7th Cir. 2010), the district court imposed a sentence that was 169

months above the guidelines range. The district court believed a severe penalty was necessary because, according to the

court, the defendant had a long, undiscovered history of engaging in sexual activity with minors. However, there was no

evidence in the record that the defendant had engaged in sexual activity with any minor except for the victim. In reviewing

the sentence, we observed that the district court had made “a questionable ... prediction about future conduct based on

rank speculation about other, multiple in-stances of deviant behavior.” Id. at 401. Here, the court did not engage in any

speculation about the defendant's past or future conduct, and speculation was not used to justify an above-guidelines

sentence. Cf. United States v. Martin, 718 F.3d 684, 688 (7th Cir. 2013) (noting that, “although we have held that a

district court's unfounded speculation that sex offenders are not deterrable may necessitate remand, we have done so

only where the court imposed an above-guidelines sentence for purposes of deterrence” (citation omitted)).

Brown's Reply Br. 3.

R.386 (1:13-cr-00854-1) at 61.

Id.

See Brown's Reply Br. 3–4.

R.386 (1:13-cr-00854-1) at 105.

R.242 (1:13-cr-00854-3) at 3 (internal quotation marks omitted).

Id. at 3–4 (internal quotation marks omitted).

Id. at 1.

See R.387 (1:13-cr-00854-3) at 29.

See R.374 (1:13-cr-00854-3) at 100 (Trial Tr. 346).

See R.265 (1:13-cr-00854-3) at 9 (citing Gov't Trial Ex. 7-S).

See R.375 (1:13-cr-00854-3) at 6–7 (Trial Tr. 402–03).

Id. at 9–10 (Trial Tr. 405–06).

Appellant Talaga's Br. 10–11.

See R.373 (1:13-cr-00854-3) at 40–49 (Trial Tr. 127–36).

End of Document

APPENDIX B

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 1 of 127 PageID #:3438

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

-vsRICK E. BROWN,

Defendant.

For the Government:

HON. ZACHARY T. FARDON

UNITED STATES ATTORNEY

BY: MS. BROOKE HARPER

219 South Dearborn Street, Suite 500,

Chicago, Illinois 60604

(312)353-5300

For the Defendant:

FEDERAL DEFENDER PROGRAM

BY: MS. ROSALIE LINDSAY-GUIMARAES

55 East Monroe Street

Suite 2800

Chicago, Illinois 60603

(312) 621-8341

Also Present:

MS. SANDRA DeNICHOLAS, U.S. PROBATION.

MR. GREGORY SMITH, U.S. PROBATION.

Chicago, Illinois

September 4, 2015

10:00 a.m.

APPEARANCES:

Case No. 13 CR 854-1

TRANSCRIPT OF PROCEEDINGS - Sentencing

BEFORE THE HONORABLE GARY FEINERMAN

)

Court Reporter:

CHARLES R. ZANDI, CSR, RPR, FCRR

Official Court Reporter

United States District Court

219 South Dearborn Street, Suite 2128

Chicago, Illinois 60604

Telephone: (312) 435-5387

email: Charles_zandi@ilnd.uscourts.gov

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 2 of 127 PageID #:3439

(Proceedings heard in open court:)

THE CLERK: 13 CR 854, USA versus Brown.

MS. HARPER: Good morning, your Honor. Brooke Harper

on behalf of the United States.

MS. LINDSAY-GUIMARAES: Good morning. Rose Lindsay

on behalf of Mr. Rick Brown.

MS. DeNICHOLAS: And good morning, your Honor, Sandra

DeNicholas from the Department of Probation.

THE COURT: Good morning. Are both sides and

Probation ready to proceed with the sentencing hearing?

MS. HARPER: Yes, your Honor.

MS. LINDSAY-GUIMARAES: Yes, Judge.

THE COURT: All right. Mr. Brown, have you had a

chance to see the Presentence Investigation Report and review

it with your attorney?

THE DEFENDANT: I did.

THE COURT: Okay. And, Miss Lindsay, do you have

any -- other than the objections and corrections that you've

set forth in your sentencing brief, do you have any others

that you're going to be raising this morning?

MS. LINDSAY-GUIMARAES: No, Judge.

THE COURT: Okay. And let me ask the government, do

you have any objections or corrections to the Presentence

Investigation Report?

MS. HARPER: No, your Honor, I do not.

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 3 of 127 PageID #:3440

THE COURT: Why don't we deal with the defendant's

objections first, and I think there are three. And if I'm

missing one that should be there or if I've added one that

shouldn't be there, you'll let me know.

I think the first request is that all references to

the firearm should be stricken from the report. Second is

the amount of loss. And third is the Probation Office's

recommendation of a sophisticated means enhancement.

MS. LINDSAY-GUIMARAES: That's correct, Judge.

THE COURT: So, why don't we take those one by one.

And if -- we're going to be here for a while, so if anybody

who's not addressing the Court would like to be seated, please

feel free to do so. Mr. Brown, you as well. If you want to

stand, you may. If you want to be seated, whatever you're

more comfortable doing.

So, why don't we first deal with the firearms issue.

There are a number of references in the PSR to Mr. Brown's

possession of and reference to firearms; and in the brief, the

sentencing brief, defendant has asked that those references

are stricken. So, I actually -- I think the defendant had the

last word on that. I know what your point is. Why don't I

turn it over to the government; and then after the

government's done addressing it, I'll ask Probation for its

view, and then I'll turn it back to the defendant.

MS. HARPER: Would the Court like me to stand or --

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 4 of 127 PageID #:3441

THE COURT: Whatever you're more comfortable doing.

MS. HARPER: I will stay here, and I may stand at

another point. But for the purpose of this, your Honor, I

don't have a view on whether the conduct in the past with guns

needs to be in the Presentence Investigation Report. I think

it is relevant conduct for the Court to consider for the

purpose of the 3553(a) factors in relation to the nature of

the offense in this case; but in terms of Ms. Lindsay's

argument that those things could affect Mr. Brown's treatment

in prison, I don't think -- I don't see a need for the

reference to those things to affect his treatment in prison,

given the timing of when the conduct occurred.

THE COURT: I'm not sure I follow that last point.

MS. HARPER: Okay.

THE COURT: You don't think -- you agree with

Ms. Lindsay's argument that it ought to be deleted because of

the possible impact it could have on Mr. Brown's placement, or

you think it ought to stay in?

MS. HARPER: Well, I think -- I think that the

information is relevant to the Court's consideration of the

3553(a) factors. Does it need to be in the Presentence

Investigation Report for the Court to consider those things?

I don't think it does.

The Court is well aware through the submission of

reports of witness interviews of that conduct, and the Court

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 5 of 127 PageID #:3442

can consider those things regardless of whether they're

referenced in the Presentence Investigation Report. And for

those reasons, because I think the Court can appropriately

consider those things regardless of whether they're referenced

in the Presentence Investigation Report, to the extent that

there's some risk that that would adversely affect Mr. Brown's

time in prison, I don't think it's necessary for them to

appear there.

THE COURT: Okay. Probation?

MS. DeNICHOLAS: Your Honor, I do think that any

reference to firearms, regardless of the time frame, would

impact the Bureau of Prisons designation, so if there -- if it

doesn't need to be in the presentence report for your Honor to

consider it, then I think it probably should be taken out.

THE COURT: Okay. Anything to add, Ms. Lindsay?

MS. LINDSAY-GUIMARAES: No, not anything beyond what

I put in my brief. My concern is the possibility that it

would negatively impact him in custody.

THE COURT: Okay.

MS. LINDSAY-GUIMARAES: And --

THE COURT: Well, I haven't heard any objections from

the government and Probation to taking it out as long as it's

something that I can consider, which I will. So, I'm going

to -- I'm going to ask Probation to remove the references to

the firearms that are listed in the defendant's sentencing

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 6 of 127 PageID #:3443

memorandum.

In terms of impacting the sentence on 3553(a), I

don't believe that information is going to move the needle

in a material way. I'm not applauding -- I do believe that

the witnesses are telling the truth, and I'm not applauding

Mr. Brown's references to or display of firearms when dealing

with those individuals.

I do think, however, that there was no chance that

Mr. Brown was actually going to do anything with those

firearms against those people; and because of that, I don't

think that this is anything that the Bureau of Prisons needs

to know in order to effect an appropriate placement for

Mr. Brown.

And because I don't think it's anything that the

Bureau of Prisons needs to know, I want to eliminate the risk

that having it in the PSR could prompt the Bureau of Prisons

to conclude that Mr. Brown's placement needs to be more

serious given the references to those firearms.

So, for those reasons, I'm going to ask Probation to

strike those references.

The second issue is the amount of the loss. And

because we're working with the November 2014 Guidelines and

because the 18-level enhancement applies to intended loss

between 2.5 and $7 million, and because even under the

defendant's proposed intended loss we would still be in that

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 7 of 127 PageID #:3444

range, because I think the defendant is saying that when you

deduct this and that and the other thing, you end up at just

under $3.5 million, this isn't going to affect the technical

calculation of the Advisory Guidelines range.

However, I do think we ought to discuss the issue

because there is this impending amendment or proposed

amendment, which in all likelihood is going to go into effect

in December -- either November or December, and I do want to

give Mr. Brown the benefit of the amended Guidelines just

because I think it's fair to do so. Why should his sentence

be one thing if he's sentenced in September and another -- and

lower if he's sentenced in December? That doesn't make any

sense.

And I took the same approach for Amendment 782, which

was the two-level reduction in the drug quantity tables. And

even if the Sentencing Commission does not make the economic

loss Guidelines retroactive, I still, under 3553(a), would

want to give Mr. Brown the benefit of those amendments.

And because the loss amount could affect what his

Guidelines -- what the offense level would be under the

amended Guidelines because if he's under -- if the intended

loss is under $3.5 million, there would be only a 16-level

enhancement rather than an 18-level enhancement, I think this

is something we ought to discuss.

So, again, the defendant raised this in his brief

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 8 of 127 PageID #:3445

yesterday. I know what the defendant's position is. Let me

turn it over to the government for its view, then Probation

for its view, and then we'll get a reply from the defendant.

MS. HARPER: Thank you, your Honor. I would like

to start by talking about the -- the perceived possible

unfairness of the sentence being different if it were on

November 14th and something else if it were on November 15th.

While I understand that perception, your Honor, I think it

makes sense to consider the purpose of the Guidelines

amendment in that issue.

And the Sentencing Commission has explained that the

reason for the amendment is to account for inflation, which is

to say that crimes committed now, when you steal a million and

a half to $4 million from the Medicare program, it's a less

serious crime than it might have been in the past to steal a

million and a half to $4 million from Medicare.

Well, the fact is Mr. Brown stole the money from

Medicare in the past. He stole the money from Medicare

starting in 2007 going through 2011 at a time when the value

of the dollar was greater. And because of that, Mr. Brown

should be punished according to the Guidelines that were in

effect during the time when he was taking that money from the

program, when the money that he was taking would have been

used -- could have been used to pay for a greater number of

legitimate services for people that were enrolled properly in

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 9 of 127 PageID #:3446

the Medicare program.

THE COURT: I understand your point. It's not an

unfair point; but if this were December 4th rather than

September 4th, you couldn't make that argument.

MS. HARPER: That is true, but it's not December 4th.

THE COURT: Yes. But then we still -- you're right.

It's not December 4th, but we still have --

MS. HARPER: And so I suppose --

THE COURT: We still have the situation where if it

were -- why should it matter to Mr. Brown's -- given that his

conduct was what his conduct was and it occurred when it

occurred, why should his sentence depend on whether my

schedule allowed for a sentencing hearing in September rather

than December? That seems kind of random.

MS. HARPER: Well, I suppose the way I would look at

it, your Honor, is that rather than Mr. Brown receiving an

unfair punishment because he may be sentenced earlier, that

people who -- similarly situated to Mr. Brown who stole from

the Medicare program at the same time that he did, 2007, 2008,

back when the value of a dollar was greater, to the extent

that those people would be sentenced after the change in the

Guidelines, they may reap a benefit because they are sentenced

later, but it is not unfair for Mr. Brown to be sentenced

under the old Guidelines now because he did take the money

back in 2007 through 2011.

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 10 of 127 PageID #:3447

So, there may be some defendants who would benefit,

in my view undeservedly, because they happen to be sentenced

after the new imposition date of the Guidelines; but it is not

unfair for Mr. Brown to be sentenced under the current

Guidelines, especially because his conduct took place a number

of years ago.

THE COURT: Your point is -- you make a reasonable

point. I just disagree with it, and here's why. And I'm

going to -- I want to give him the benefit of the new

Guidelines.

The current -- I think the numbers in the current

table are from, what, 1987?

MS. HARPER: That's correct, your Honor.

THE COURT: So, even if you look, as we should, at

2007 to 2011, it's still at the back end of that period. So,

there was a lot of inflation between '87 and '07 and '08 and

'9 and '10 and '11, so we're at the back end of that.

And it's not like the last seven or eight years were

like the '70s, where inflation was 15 percent, 18 percent.

We've been in a recession. Inflation has been very, very

low. So, while the difference between 1971 and 1978 value of

the dollar probably was pretty significant, the difference

between 2015 and 2007 to 2011 is not terribly significant.

And given that, and given subsection (a)(6) of 3553,

I'm going to -- I want to give him the benefit of the new

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 11 of 127 PageID #:3448

Guidelines.

So, what do you think of his calculations?

MS. HARPER: In that case, let's move on to talk

about that, your Honor, and I'll move through the different

points that Ms. Guimaraes makes in turn, starting with the

notion that there's some unclarity as to when Mr. Brown's

participation in the fraud began. And I'll address two

different aspects of the fraud, your Honor, that date back

to the beginning of 2007. One is the prolonged care code,

use of the prolonged care code, and the other is care plan

oversight.

Now, I think Ms. Guimaraes points out that Dr. Lucero

testified that at one time he and Mr. Brown believed that the

prolonged care code could legitimately be used, and that it

was only after a short time that they realized that it could

only be done -- that they were billing the code unlawfully,

and so they scaled their use of the code back to two times a

day to try to evade detection by Medicare.

Well, the testimony of Ms. Wardzala dates the use of

the code in the unlawful way back to 2007, because that is a

time when she was working at MediCall. And she testified that

she understood, she perceived that the code was only being

used selectively, as Dr. Lucero described. And you only use

the code selectively, Ms. Wardzala perceived, if you intend to

do it unlawfully. If you think everybody gets the value -- if

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 12 of 127 PageID #:3449

you think everybody can legitimately be billed for it, you

bill everybody for it, not a few selective people.

And so when you combine Dr. Lucero's testimony and

Ms. Wardzala's testimony, it's clear that the unlawful use of

the prolonged care code dates back into 2007, so we should not

do a reduction in the loss amount for the prolonged care code

use.

Now, a similar observation, I think, needs to be made

as to the care plan oversight billings. Ms. Guimaraes

similarly argues that Dr. Lucero testified that the use of --

well, the fraud as a whole and the use of the care plan

oversight fraud also evolved over time and that they came

to -- you know, they started at the beginning talking about

ways that they could bill things legitimately, and that

morphed into discussions of ways that they should do things

unlawfully.

Well, the evidence at trial showed that the nature of

the fraud with care plan oversight was they took everybody who

was on home healthcare, and they billed them for care plan

oversight. And when you look at the testimony and evidence

that were introduced at trial -- and I will hand some of these

things around right now -- you can see that that fraud was

taking place as far back as 2007, if not earlier.

With the Court's permission, given the timing that

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 13 of 127 PageID #:3450

we're working on here, I prepared a packet of some exhibits

and cases that I may intend to reference today. So, I'll turn

now to the first two items that are in this packet.

Government's Exhibit 7-S and 7-D, which were introduced at

trial.

Now, Dr. Lucero testified that the greatest number of

care plan oversight services he might have provided to any

patient in any month was 30. Well, Government Exhibit 7-S

shows the number of care plan oversight services billed just

to unique Medicare beneficiaries going -- per month, going

back all the way to January 2007. Well, these numbers show

that in the month of January 2007, there were more than 100

services billed under Dr. Lucero's number, in the month of

February, more than 138, far exceeding the number of services

that Dr. Lucero said he would ever have actually provided to

patients.

Similarly, when you look at Government's Trial

Exhibit 7-D, which relates to the proportion, the comparative

proportions of billings for home health certifications and

care plan oversight, you can see that for the entire period of

the conspiracy for which Rick Brown was convicted, the same

practice was being used; that is, for every patient who was on

home healthcare, the practice was billing Medicare for care

plan oversight.

And I just want to explain this briefly, which the

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 14 of 127 PageID #:3451

Court may recall the testimony from Kelly Hartung, which is

you can -- when you bill Medicare for a home health

certification, it's for 60 days at a time; and when you bill

care plan oversight it's for a maximum of 30 days at a time.

So, if you were billing Medicare for care plan oversight in

every month when somebody was on home healthcare, you'd expect

to see a ratio of approximately two care plan oversight

billings to every home healthcare certification billing.

And when you look at the data, the claims that

MediCall submitted to Medicare for the total conspiracy

period, 2007 through '11, you see that that's exactly what

was being done. More than two care plan oversight claims

were submitted for every home health certification claim.

And so what this data shows is that it wasn't just

in 2010 or 2011 that this practice of billing Medicare for

every home health patient for care plan oversight, it didn't

just start in 2010-11. It goes all the way back to 2007.

And Rick Brown directed the -- he's the one who

directed the employees to do this. That's what Arian Shogren

testified. All the employees who testified at trial, your

Honor, said that Rick Brown was the one that was in charge of

the company for the totality of the time that it was

operating.

So, I don't think -- I think it's clear that based on

the jury's conviction and the evidence that was introduced at

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 15 of 127 PageID #:3452

trial, that Rick Brown was a participant in this fraud, in the

care plan oversight fraud, and that it was going on from

January 2007 clear through to the end of the practice's

operation in December of 2011. And so I don't see any reason

to make any kind of reduction in the loss that the government

has calculated for care plan oversight.

Ms. Lindsay also argues that Mr. Brown should not be

charged with the billings for dead patients because it's clear

that Mr. Brown was only instructing people to submit

fraudulent claims for live patients; but the nature of the

fraud that was committed at MediCall was, "We're billing

automatically. We're taking everybody who's on home

healthcare. We're billing them for care plan oversight

services they didn't get." The natural result of that is you

will wind up with some dead people billed, and that is what

happened in this case.

Now, Ms. Lindsay devotes a number -- a fair bit of

space to arguing that the loss amount for Mr. Brown --

THE COURT: If you could move the microphone just a

little bit to your left. Great. Just so when you're facing

me, the microphone catches you.

MS. HARPER: Okay.

THE COURT: Thank you.

MS. HARPER: Now, Ms. Lindsay also devotes a fair

amount of space to arguing that there should be some reduction

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 16 of 127 PageID #:3453

because Mr. Brown necessarily must have understood that

Medicare would deny some claims. And this is the argument

that although -- this is the argument that he must have

expected -- he couldn't have intended that Medicare would

actually pay all of the claims that were billed. He must have

expected some of those would be denied, and so he should only

be charged for what was paid or he should be given some

reduction based on the denials. And I want to walk through

some of the what I think is relevant case law and the

Guidelines provisions on this issue.

I think Ms. Lindsay acknowledges, and I want to point

the Court to the Guidelines provision. Section 2B1.1 provides

that the loss is the greater of the actual and intended loss.

And the intended loss in a healthcare fraud case is

specifically addressed in the comments. And so this is -- in

the comments to 2B1.1, it's comment (3)(F)(viii). It is on

page 91 of the manual.

Okay? And it provides -- that comment provides, in

relation to federal healthcare offenses involving government

healthcare programs, in a case in which the defendant is

convicted of a federal healthcare offense involving a

government healthcare program, the aggregate dollar amount of

fraudulent bills submitted to the government healthcare

program shall constitute prima fascie evidence of the amount

of the intended loss; i.e., is evidence sufficient to

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 17 of 127 PageID #:3454

establish the amount of the intended loss if not rebutted.

Now, that same standard has been endorsed repeatedly

by the Seventh Circuit. And I want to United States against

Mikos and United States against Sutton. And just for the

record, I'll read out that the citation for Mikos is 539 F.3d

706. I'm going to read now from page 714 of the decision,

which is on page 9 of the printout, beginning at about halfway

through the paragraph with the label (viii), which reads:

"Whether Medicare paid is irrelevant to the loss

calculation under 2B1.1, however, because that section deals

with intended loss. Mikos," the defendant in the case,

"billed the Medicare program for 1.8 million. That's the

intended loss whether Medicare paid or not, unless some of

the claims were legitimate."

Similarly, your Honor, in United States against

Sutton, I'm going to turn now -- well, actually, for the

record, the citation to that case is 582 F.3d 781. I'm going

to read now from pages 784 to 785.

"Where the defendant also argues in passing that

even assuming all of the claims were fraudulent, the loss

calculation should be 25 percent lower. Sutton points out

that although he billed Medicaid $2,135 per 20 counseling

sessions, Medicare never paid more than $1600 for the claims,

a 25 percent reduction from the amount he billed.

"This argument goes nowhere. This is nothing in the

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record to suggest that Sutton did not hope to recover the full

amount that he billed. The fact that Medicaid denied some

claims or that he overbilled for the services provided sheds

no light on his intention to bilk Medicaid for the full

amounts billed."

Now, I'm sure Ms. Guimaraes will point out that the

comment to Section 2B1.1 contemplates that the defendant can

come forward and rebut the government's showing. That is, the

government has made a prima fascie showing that the intended

loss was over $4 million in this case by showing that that's

the amount of the fraudulent claims that were submitted. So,

then there's the question of: Well, what can the defendant do

to rebut that?

And the answer is he must provide some evidence.

Counsel's submissions in a sentencing brief are not sufficient

to rebut the -- rebut the prima fascie showing that the

government has made. And I'd like to refer the Court on that

point to United States against Miller, which is the next case

in this packet. And it is a Fourth Circuit case with the

citation 316 F.3d 495, and I'm going to read now an expert

from pages 504 to 505.

"Miller's counsel did argue at sentencing that Miller

intended to bill Medicare and Medicaid only the amount set

forth on the government-established fee schedule as the price

of a given medical service. If Miller had offered evidence on

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this point and similar evidence as to the other insureds he

defrauded, he might well have overcome the usual presumption

that a bill is a bill, but Miller offered no such evidence.

He did not testify that he was aware of the Medicare or

Medicaid fee schedules, nor did he proffer any evidence to

suggest that he knew the amount Medicare and Medicaid would

pay."

And I'm going to skip forward, your Honor, now, to

the next major paragraph, and starting in about the middle of

that paragraph, "In essence, Miller asks us to assume that he

knew the limits on Medicare and Medicaid payments, although he

never testified to that fact, and that he chose to bill well

above that amount with no intention of receiving the amount

billed, although he never testified to this fact, much less

suggested any alternative reason for the billing amount."

I would also note, your Honor, that 2B1.1 relates to

what loss the defendant intended to cause. Rick Brown is the

one who directed this fraud at MediCall. He's the one who

instructed employees on how to bill Medicare for services for

every single home healthcare patient.

And instead of the type of nuanced testimony that

might allow the Court to determine that maybe Rick Brown did

know something about fee schedules, maybe he did have some

reason to expect or intend that he would only receive some

percentage of the amount that was being billed, Rick Brown

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 20 of 127 PageID #:3457

testified at trial and professed total ignorance to the way

that the billing at MediCall worked.

And he continues to profess ignorance as to the way

billing works, as to the way Medicare works, even in the

letter that he submitted to the Court. And so I am going to

just read briefly one sentence on the second page of his

letter, where Mr. Brown says, "Professional billers, of which

Talaga was one, have a level of expertise which I did not

possess. I'm an excellent medic, not a billing professional."

And so, your Honor, not only has the government made

its prima fascie showing as to what the total intended loss

was based on showing the total fraudulent -- the number of

fraudulent claims that were submitted to Medicare, Rick Brown

has come forward with no evidence to suggest he intended to

recover less than the amount that was billed, and he has

indeed professed total ignorance to how billing works and to

having nothing to do with the way that billing was conducted

at MediCall.

For those reasons, Rick Brown has done nothing to

rebut the prima fascie case as to the intended loss amount

that the government has made.

THE COURT: Probation?

MS. HARPER: Excuse me, your Honor?

THE COURT: Probation.

MS. HARPER: Oh, Probation.

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MS. DeNICHOLAS: Thank you. Your Honor, this is not

my case. I'm covering for Sarah Kieckhafer, so I hadn't

looked into the issue as much as I -- or become familiar

enough. I didn't interview the agent. And I think that I

would leave it up to the attorneys to argue their points.

THE COURT: Okay. Thank you.

MS. DeNICHOLAS: Thanks.

THE COURT: Ms. Guimaraes?

MS. LINDSAY-GUIMARAES: Yes, your Honor. I had

several comments I wanted to address. First of all, with

respect to the issue of the jointly undertaken criminal

activity and it allegedly going back to 2007 for both

prolonged care and care plan oversight, the problem I'm seeing

here is that Wardzala seems to be saying one thing, and Lucero

seems to be saying something very different with respect to

the timing.

And my concern here is that in all of the myriad

comments I pulled from the transcript of Lucero suggesting

that at first he wasn't quite sure or didn't think it was

wrong or just wasn't aware, the way he testified, he didn't

make it sound as though he had a couple of days in the

beginning of 2007 of uncertainty and then things dramatically

progressed from there. He made it sound in his testimony like

there was a period of time where the progression occurred,

where things evolved.

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 22 of 127 PageID #:3459

And with respect to care plan oversight, I pointed

out in the transcript that he specifically suggested that they

began -- that at first they didn't do all home health, but

then they did all patients on home health, and then it

progressed to do all patients on home health every month. And

he suggested a very clear progression step by step.

So, the question for me is -- and for the Court,

obviously, is: If there was some kind of a progression -- and

all of the offenses for which Mr. Brown has been found guilty,

they all have a state of mind requirement, an element that

goes to his state of mind.

So my question is then if Dr. Lucero seemed to be

evolving in going from -- crossing the line from genuine good

faith misunderstanding to an intentional fraud, when was that

critical shift in his state of mind? His testimony does not

seem to suggest that it was in early days of 2007, in spite of

the data.

Now, the data, conflicting with Dr. Lucero's

suggestion that it evolved over time, could be something that,

you know, could have been directed -- something that the

billers were responsible for, and that maybe Lucero didn't

have a part of. I don't know. But the fact of the matter is

that Lucero's testimony shows a clear lack of understanding of

the unlawfulness of some of the use of the codes early on.

And if Lucero wasn't clear at an early stage in the time

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 23 of 127 PageID #:3460

frame, it simply could not have been a joint endeavor.

He never said that Rick came to him and suggested the

use of home health in 2007. He just said it evolved over

time, that he gained an understanding later on that it was

wrong and yet at that point chose to continue to engage in the

behavior. So, if it was evolving, it simply could not have

been a joint endeavor as early as January 1st, 2007.

THE COURT: But at some point, Dr. Bayne indicated

to Dr. Lucero and Mr. Brown that you can't use prolonged care

codes to cover for travel time, and that was pretty -- it

wasn't -- it may not have been in '07, but it was pretty early

in the '07 to 2011 time frame.

MS. LINDSAY-GUIMARAES: I believe that e-mail was

either 2009 or 2010. So, that certainly did occur, and then

at that point, when there was more clarity provided by

Dr. Bayne, certainly things had to evolve from there. They

had a choice whether they would continue to use it anyway or

whether they would refrain from doing so.

But my concern is here if we just look at Lucero 's

testimony -- and the government has relied very heavily on his

testimony -- Dr. Lucero is suggesting all kinds of doubt as to

when things, in terms of state of mind, actually solidified

and crossed the line from good faith mistakes to intentional

fraud.

And if there's -- if there's any development there

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of the fraud over time, I don't think it would be fair to

consider Mr. Brown a joint participant as early as January

2007 when things evolved in what he called, you know, a very

subtle, gradual way.

So, that's my concern with respect to the joint

endeavor. Should I go on, or did the --

THE COURT: Sure. Go on.

MS. LINDSAY-GUIMARAES: With respect to the deceased

patients not being within the scope of Mr. Brown's intended

action, yes, it appears that there was a directive to just

bill automatically; and as the government noted, a natural

result would be to bill dead patients. Yet nowhere in the

government's evidence that I've seen is there ever a directive

by Mr. Brown to say, "Oh, by the way, why don't you lump in

all of our prior and deceased patients into this whole thing."

If deceased patients were lumped in to that process,

it was more a matter of not keeping up with the information

coming from either the home health agencies or Social

Security, getting their records updated as to which patients

had passed away.

And, you know, there was -- Arian Shogren suggested

that there was a continual effort to try to update this list

of patients on home health, and it seems that it was a very

imperfect process.

And so -- but again, with respect to Mr. Brown, he

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never directed anyone to say, "Hey, you know, it doesn't

matter if they're prior patients. Just bill it." It never --

anywhere in his e-mails did he even come close to suggesting

that that's what he wanted or intended.

He was pushing for, "Whatever patients we have now on

home health, let's bill them and bill them every month." But

it's clear from the context that he was -- he was intending

current patients. I think it's absurd to suggest that he

would have even contemplated the biller lumping in patients

who had already passed away and then saying that services

were provided for those patients, because if you want to

commit fraud, that is definitely one of the stupidest things

that he could have intended to do because it's so easily

detectable.

So, I'm just not at all convinced that it's

appropriate to include the deceased patients within the scope

of what he intended, based on the evidence.

With respect --

THE COURT: And do you agree with the PSR's

calculation and the government's calculation that the amount

attributable for the claims for the deceased individuals was

just under $22,000?

MS. LINDSAY-GUIMARAES: Yeah, we do not dispute the

government's calculation.

THE COURT: And then for the prolonged care, the

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 26 of 127 PageID #:3463

amount involved there was $284,000.

MS. LINDSAY-GUIMARAES: Yeah, we do not dispute the

actual calculations. Our arguments go more to Mr. Brown's

state of mind and when there would have been crossing the

line from good faith to intentional fraud, which would then

kick in this analysis of: Was this a joint criminal endeavor?

Was it within the scope? And was it reasonably foreseeable?

So, with respect to the issue on the intended loss,

we're not arguing that it should be actual loss. We

understand that the Commission has come down very clearly

in -- with respect to healthcare offenses that the intended

loss is, you know, prima fascie evidence of -- you know, the

bills submitted is the prima fascie evidence of the intended

loss, excuse me. But the intention here -- I understand the

Seventh Circuit's position and the cases that the government

has provided, but I'm troubled at this concept that just the

mere hitting send on all of the billing couldn't fairly

contemplate the actual realistic reality of what the billers

and Mr. Brown's, for that matter, what their real genuine

intentions could have been in doing that, because it's clear

from the government's evidence in terms of the remittance

advices, every single one of them in one of the government's

exhibits had a significant denial percentage.

And if that was the common trend in the billing

practices at MediCall, if it was -- if it was a standard and

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 27 of 127 PageID #:3464

an understood thing that not everything billed is reimbursed,

and, in fact, it looks like the vast majority, if not all of

the remittance advices that came back suggested that there

were some denials for whatever reason, if that was the case,

it would be, in my opinion, impossible for the parties to

genuinely believe that everything they submitted would have

the potential to be reimbursed.

We also submitted the AMA's statistics on the

national average denial rate of Medicare in general over the

actual time frame of the years 2008 to 2011, and that --

there's an average denial rate of Medicare that the AMA has

every year now been putting out a report card and showing

denial rates of health providers, including Medicare, and

those denial rates have on average over the course of this

conspiracy gone from close to 7 percent and then down close to

3 percent.

So, it's standard, and in the medical community, it's

understood -- I would imagine if we were to go out and talk to

100 different medical providers right now, whether home care

providers or some other kind of practice, I would imagine that

every medical provider would say that, yes, it's common, in

fact expected for Medicare to provide some denials.

So, I'm troubled at the thought of Mr. Brown being

held accountable for more than what he could have

realistically and reasonably expected in terms of loss,

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 28 of 127 PageID #:3465

knowing that those remittance advices were coming back to the

office on a regular basis and knowing that they were being

reviewed.

And if he had to push for more billing, it was

because he was aware of what wasn't going through and what

was, and was always trying to improve the bottom line. And so

the evidence is pretty clear that he would have had some idea

that there was essentially a built-in denial percentage in the

system.

And again, we brought up those remittance advices,

the government's own exhibits. They show significant denial

rates, sometimes as much as 30 percent, in addition to the

statistics from the AMA. And then going one step further, I

don't think Mr. Brown's letter to the Court contradicts any

of this, because he didn't say in his letter that he wasn't

aware of the denial rate. He professed ignorance as to the

specifics of the billing process. He didn't sit and use the

Medisoft software. He didn't sit and analyze the codes and

the diagnosis codes and the billing codes and things like

that.

So, when he says he's professing ignorance, he

certainly can do that, and that's a legitimate claim given the

fact that he wasn't actually doing the billing and entering

the data and hitting send in the Medisoft software.

So, I think what we've pointed to is sufficient to

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 29 of 127 PageID #:3466

rebut this idea that everything submitted just must absolutely

positively have been his intention.

And that's all I have on that point. Oh, well, I

just wanted to point out the First Circuit case, United States

versus Alphas, 785 F.3d 775, 2015, which I addressed in my

brief, where the First Circuit was considering this idea and

emphasized that this standard under the comment (3)(F)(viii)

is -- it says the relevant inquiry is what the defendant

reasonably expected to bilk out of the system -- out of the

victim, and that the standard focuses primarily on the

offender's objectively reasonable expectations.

To me, that statement and in the other case I

mentioned by the First Circuit, that comes down as the more

fair approach, and so we would ask the Court to consider those

cases in grappling with this issue.

THE COURT: Okay. Thank you. Anything in reply?

MS. HARPER: A few points, your Honor.

As to Ms. Guimaraes's point that because there was

some evolution, the fraud could not have been in place in

2007, this company was operating in 2006, your Honor, I

believe even 2005. If you look at the billing data, it is

clear that the fraud was in place in 2007. To the extent that

there was some evolution in a ramp-up to when Rick Brown and

Roger Lucero decided that they were going to bill every single

home healthcare patient for care plan oversight, that is not

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inconsistent with the fraud being in place and operative in

the beginning of 2007. The government charged only a

conspiracy period of January 2007 through December 2011. That

is not the total time period when MediCall was in operation.

And I further would point out I don't believe there

is anything inconsistent with what Dr. Lucero testified to and

what Ms. Wardzala testified to. For Dr. Lucero to say that

there was a time when he thought that it was lawful to use the

prolonged care code and then he later realized it wasn't and

he and Rick Brown decided they would bill the code

deceptively, and for Ms. Wardzala to say that in 2007 when she

was working there she noted it was being billed deceptively,

that merely indicates that sort of a crossover point in the

timeline, Miss Wardzala helps to date the time period by which

Rick Brown and Roger Lucero had already determined the code

would be used in a deceptive way.

And I would also note that Ms. Wardzala said it was

Rick Brown who instructed her that the code should be used in

the way that it was used.

THE COURT: Okay.

MS. HARPER: As to the dead patients who were billed

and Ms. Guimaraes's point that Rick Brown would not have

intended for dead patients specifically to be billed, the

point is that Rick Brown instructed people to bill every

single home health patient for care plan oversight; and when

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 31 of 127 PageID #:3468

you've got people who are on home healthcare for months and

months and you're automatically billing them for care plan

oversight, some of those senior citizens pass away, and you

continue to bill them for care plan oversight even though

they're dead. And that is what happened in this case.

So, to say that he didn't intend specifically for

dead people to be billed, he intended that all of those claims

would be submitted and that MediCall would be paid for all of

them, regardless of whether the people were dead.

As to the remittance advices and moving on to

Ms. Guimaraes's point about what the defendant -- what

Mr. Rick Brown in particular may have reasonably expected, the

question here is: What did Rick Brown intend? And Rick Brown

and Roger Lucero and Mary Talaga intended that every single

patient on home health would be billed for care plan oversight

and that they would get paid for every single one of the

claims that they submitted.

The government has not done a loss calculation here

based on some fraudulent claims and some non-fraudulent

claims. The government's calculation is purely about the --

in the care plan oversight realm, the amount of services that

were fraudulently billed to Medicare. Were some of those

claims denied? Yes. Some of the patients were dead, and so,

therefore, Medicare denied those claims. In some cases,

had -- another service provider in another business already

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 32 of 127 PageID #:3469

submitted a claim for that same care plan oversight, and so

did Medicare deny the claims because somebody else already got

paid for it? Yes.

But when Rick Brown instructed Mary Talaga and Arian

Shogren to bill for every single home health patient for care

plan oversight, he intended every one of those claims would be

paid. That was hit intent. And for Ms. Guimaraes to say that

Rick Brown -- his intent is informed by information of which

there is no record in this case. I think everything that

Ms. Guimaraes said about what people in the medical community

might reasonably expect may be true of what some people in the

medical community may reasonably expect, but there is no

evidence in this case that Rick Brown understood that or knew

any of that.

THE COURT: Okay. We're dealing with 3553(a) in

terms of the importance of what the intended loss amount is.

And I'm not going to -- I'm not going to give you a precise

calculation. I believe -- well, what the Probation Office and

what the government propose is that the intended loss amount

be $4.317 million. The vast majority of that amount is for

care plan oversight, which was $3.63 million. About 284,000

was for prolonged care. 22,000, a very small amount, was for

deceased people. And $378,000 were the claims submitted on

behalf of services performed by doctors who at the time were

not employed by MediCall.

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So, with respect to the prolonged care, let's say

that Dr. Bayne -- that for the first two or three years of

the fraud, there was legitimate confusion as to whether you

could use prolonged care claims to reimburse for travel.

We're talking maybe $150,000.

Let's say I give Mr. Brown the benefit and don't

attribute any of the dead people to him. That's $22,000. I'm

not sure that would be the right thing to do, but I think you

know where I'm going. It doesn't really matter.

And let's -- I don't -- I think that the appropriate

interpretation of comment (F)(viii) of Guideline 2B1.1 is that

there shouldn't be a reduction -- well, let me step back.

Whatever confusion there might have been as to the --

even viewing the -- even taking Mr. Brown's view of prolonged

care and saying, well, you know, maybe before Bayne's e-mail,

they didn't know, that's limited to the portion of the

intended loss dealing with prolonged care. I think with

respect to care plan oversight, billing every single home

healthcare patient every month for care plan oversight, there

was no evolution there. It wasn't like they thought it was

okay at the beginning and then realized later on in the middle

of the scheme that that, after all, was not okay. That was

fraudulent from the get-go.

So, we have the $3.63 million there for care plan

oversight and the $378,000 for the doctors who weren't there.

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 34 of 127 PageID #:3471

And I don't believe that the presumption under section

(F)(viii) of the comments has been rebutted with evidence for

the reasons that the government stated.

But even if I were to give Mr. Brown the benefit of

the background knowledge of anywhere between 3 percent and

7 percent of all claims are denied, that still would amount

to about $250,000. And even adding that to the -- maybe half

of the prolonged care amount of $284,000 and all of the dead

people, $22,000, that still doesn't get Mr. Brown south of

$3.5 million.

So, I'll just assume that the intended loss is

somewhere marginally south of $4.317 million; and I know that

the intended loss, even giving Mr. Brown the benefit of all

the doubts, some of which are not even doubts, he would still

be north of $3.5 million.

But in the end, it really doesn't matter, because

we're talking about 3553(a) here and giving Mr. Brown the

benefit of the amendment that has not yet been put in place.

And whether it's $3.51 million or, as Mr. Brown says,

$3.44 million, when I'm looking at the 3553(a) factors, that's

not going to move the needle at all. I'm going to sentence

him as if he were at the upper -- at the very, very top of a

16-level enhancement or towards the bottom of an 18-level

enhancement. So, that's how I'm going to resolve the amount

of the loss.

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Let's talk about sophisticated means. We'll resolve

that, and then to make sure everybody has a chance for a

break, we'll take a break; and then we'll come back and

discuss the 3553(a) factors, other than the Guidelines, unless

anybody needs a break right now.

MS. HARPER: Fine for the government.

THE COURT: Okay. So, in terms of sophisticated

means, I do know what the defendant's position is. The

defendant was heard last in writing, so I'll let the

government go first.

MS. HARPER: Thank you, your Honor. I think when it

comes to sophisticated means, Ms. Guimaraes's general point

is -- well, there's a couple of general points. One is there

wasn't much sophistication here. They submitted a bunch of

fraudulent claims, and that's not very hard to do. You don't

have to be sophisticated to do that.

And then the second point is, they got caught, so

clearly they didn't do a very good job of sophisticatedly

engineering their offense.

And as to the first point, I think -- which is it

just wasn't very sophisticated, they didn't do much that was

sophisticated here, I think it makes sense to take a step back

and think about all of the moving pieces that came together to

conduct and attempt to conceal the fraud in this case.

So, the first aspect of the crime, your Honor, is

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that patients need to get put on home health services. And we

heard testimony at trial that Rick Brown would himself put

patients on home healthcare, Rick Brown, regardless of what a

doctor may order, and then he would tell Mary Talaga and Arian

Shogren to bill as though a doctor had prescribed it.

And then numerous employees testified about the fact

that Rick Brown over the years persistently forged the

signatures on those 485 forms that are required to put someone

on home health care.

So first, just as to the aspect of getting the

patients on home healthcare, we have fraudulent prescriptions,

and we have Rick Brown forging signatures, falsifying

documents on the 485 forms.

And then there's the second aspect of the fraud,

which is we take all of those people who are on home

healthcare, some of whom have been put there by Rick Brown,

and we bill them all for care plan oversight. There are

within that second component numerous steps to try to engineer

fraudulent concealing documents.

The first step is we get everybody who's got an

actual prescription for home healthcare, a 485, real or not,

on the spreadsheet that Ms. Shogren was instructed to maintain

at Mr. Brown's direction. And then Ms. Shogren had to go into

the electronic medical records system to do a cross check of

people who may actually have received home healthcare --

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excuse me, care plan oversight services and there was

documentation for it, and all of the other patients, the

hundreds of patients per month for whom there was no

documentation.

Once she prepared that cross check, she'd send a

list out to all the doctors by e-mail on a weekly basis at

Rick Brown's instruction telling the doctors that they were

required to create documents for those hundreds of patients

that had no care plan oversight documentation and return it

within a period of 72 hours.

Mary Talaga had to take that spreadsheet and enter

all the false information into the billing system, that is

true. But around that was the infrastructure of we've got

the spreadsheet. We've got Arian Shogren cross checking

information from the spreadsheet and the electronic medical

system. We've got e-mails periodically being sent to the

doctors in an attempt to fabricate records to fill in the

gaps where there was no actual documentation.

And then when some of those doctors, particularly

Dr. Patel, refused to fabricate the documents that Arian

Shogren was e-mailing about regularly, then Rick Brown went to

Roger Lucero and had him falsify documents in the electronic

medical records system; and then those additionally had to be

backdated consistent with the claims that Mary Talaga had

already submitted.

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 38 of 127 PageID #:3475

So, this is not just a case where there's a biller

who's, you know, making up dates and times that go into a

billing system. Yes, that did, in fact, happen here, and that

may be the run-of-the-mill healthcare offense, where you've

just got somebody making up information that goes into a claim

submission form. But that wasn't the extent of what happened

here. You had multiple individuals, Rick Brown compelling

Arian Shogren, with the participation of Mary Talaga, trying

to compel the doctors, ultimately compelling Roger Lucero, to

put into place this entire infrastructure that supported the

fraudulent claims that they were submitting and to create

documents in an attempt to conceal from Medicare, from the

contractors of Medicare who may ultimately come to check for

the documents to make sure that if they got audited again,

they'd have documents that they could show and say, "Oh, yeah,

we did all the care plan oversight services."

So, this is not just, you know, a one-step-and-done,

unsophisticated attempt to commit fraud. There were many

systems in place involving multiple people to attempt to

attempt to conceal what was happening.

Now, as to the point that they did a really bad job

ultimately of concealing the fraud, I want to direct the Court

to -- well, ultimately, they did get caught, clearly, and I

think Ms. Guimaraes concedes that. I want to direct the Court

to United States against Wayland, which is the next case in

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 39 of 127 PageID #:3476

the packet. That's a Seventh Circuit case, 549 F.3d 526. I'm

going to read from page 529.

"Mr. Wayland," the defendant in the case, "also

submits that because he erred in the design and execution of

his fraud, it could not have been sophisticated. He suggests

that his admission that he shared an account with Stern was

foolish and that his forgeries must have been amateurish

because investigators quickly were able to uncover the fraud.

However, a sophisticated scheme need not exhibit intelligence

or expertise.

"It does not matter that Mr. Wayland might have done

a better job perpetrating and concealing the fraud, nor does

it matter that Mr. Wayland's own sloppiness or errors of

judgment may have contributed to the unraveling of his scheme.

Mr. Wayland's scheme displayed a greater level of planning and

concealment than the typical healthcare fraud, and its

failings do not suggest that the district court clearly

erred."

And I would submit to the Court that that is exactly

what happened in this case, that although clearly there were

errors in the attempts to conceal the crime here, including

that they just billed at levels that were completely

ridiculous all the way back in 2007, there was an

infrastructure in place, a complex infrastructure in place

that was intended to conceal the conduct of the crime, and

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 40 of 127 PageID #:3477

that it was a sophisticated offense, so the enhancement

applies.

THE COURT: Does Probation have anything to add?

MS. DeNICHOLAS: No, your Honor. Thank you.

THE COURT: Okay. Ms. Guimaraes?

MS. LINDSAY-GUIMARAES: With respect to this

spreadsheet, I'm having a hard time seeing how that was

particularly sophisticated, as it was simply a means to just

keep track. They were just keeping track of a list. It was

around the same bill everyone on home health. That meant they

needed to create a list and pull that from the Janus

electronic medical system and put it on a spreadsheet and

track it. So, that was just a way to manage a list, and in no

way should that be viewed as sophisticated by any stretch of

the imagination.

Furthermore, it was -- it was very openly discussed

in the office that was sent around to the doctors, as

Ms. Harper mentioned, no efforts whatsoever, as, you know, we

looked at the e-mails in court, no efforts to say, "Hey, you

know, this spreadsheet needs to be delivered to the doctors

only and nobody else can know about it." There was no

discussion like that. It was very open. Mr. Brown's intent

there was very clear in what he was asking people to do.

And the fact that multiple people needed to be

involved in, you know, maintaining that list, again, shouldn't

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 41 of 127 PageID #:3478

go to the fact that it was sophisticated.

With respect to the other parts that came into play

in terms of retroactively documenting, that's certainly an

additional step that needed to be taken to perpetuate the

fraud, but that -- all of that appears to have been in

response to the audit. And so if we look at the time before

the audit where there was just billing based on, you know,

"Let's do this list of everyone on home health and bill

everyone for care plan oversight," that particular part of

things doesn't seem particularly complex in either the

execution or efforts to conceal it. It was very

straightforward. "Let's see who these people are, and then

let's have Mary bill them."

The second part of this, though, when the audit began

and Dr. Lucero testified that he then had to go back and

retroactively document things, that was certainly an

additional step, but my question for the Court is: Was that

an additional step that would go above and beyond a typical

scenario of this nature where there was inappropriate billing,

an audit came around, and the parties then realized, wow, we

don't have all the documentation that we needed for this for

purposes of the audit," so, the logical thing to do then would

be, well, Dr. Lucero goes in and adds some notations?

So, all of these things, I understand that there are

multiple people and, as the government suggested, you know,

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 42 of 127 PageID #:3479

multiple moving parts; but it's hard for me to see how that

comes outside of the realm of a typical fraud, of managing

what needs to be managed on the end of MediCall in order to

submit fraudulent billing. It was just, "We're going to bill

all of these people, and this is how we're going to do it."

And it was done very much in the open, and then the

documentation came after -- after the audit.

So, we're not at all trying to say that because it

wasn't maybe as intelligent as it could have been, that that

makes it not sophisticated. What we're saying is that it

just -- in the entire execution and level of concealment and

everything, it just can't be more than what would typically

be done to get reimbursements for claims that -- for services

that weren't provided.

THE COURT: Any reply?

MS. HARPER: Two minor points, your Honor. One, as

to the fact that the fraud was openly conducted within the

office, I agree with that. The question is not was the

fraud -- did the participants attempt to conceal the fraud

from themselves. The question is: Did they attempt to

conceal the fraud from the Medicare program, the victim in

this case? And the answer is yes. The entire infrastructure

that was built to fabricate documents was intended to conceal

the crime from the Medicare program, not from each other.

And Miss -- I think Ms. Lindsay just -- she conflates

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 43 of 127 PageID #:3480

various pieces of the evidence in relation to what documents

were fabricated in an attempt to conceal in this case.

Dr. Lucero did testify that he fabricated documents to respond

to the audit, which happened in 2010. But from that point

forward, the infrastructure I described was used and in place

so that in the event of another audit, the fraud would not be

discovered.

THE COURT: I think both sides -- both sides'

position is reasonable. I think the defendant has the better

of the argument on sophisticated means. I'm looking in

particular to application note 9(b), which defines

sophisticated means as, "Especially complex or especially

intricate," not just complex and intricate, but, "especially

complex and especially intricate offense conduct pertaining to

the execution or concealment of an offense."

And what we have here -- and I agree with

Miss Harper's description of the offense conduct. What we

have here is just garden-variety fraud and garden-variety

concealment. I don't think it was complex or intricate. I

very strongly believe that it wasn't especially complex or

especially intricate.

There were fraudulent prescriptions. There were

forged signatures, backdating medical records. That's all

mine run activity in a healthcare fraud case. That's what

happened. Mr. Brown will be held accountable for it. But

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 44 of 127 PageID #:3481

it's not especially complex or especially intricate.

Particularly given that the claims were submitted for

care plan oversight every month for every home health care

patient, that's kind of the opposite of complex and intricate.

Billing the first and the last patient every day for prolonged

care, that's not complex or intricate at all. It's pretty --

pretty basic.

So, I'm going to find that the two-level enhancement

for sophisticated means does not apply.

And there are no other objections from the defendants

to the Guidelines calculation, is that correct?

MS. LINDSAY-GUIMARAES: Your Honor, I did just want

to point out that I had also briefly addressed the idea with

respect to loss as to whether a reasonable margin of error

should be incorporated in terms of giving the final

calculation, just understanding that human error most

certainly in this case could have come into play given the

circumstances under which Ms. Talaga was actually submitting

the billing.

THE COURT: Okay.

MS. LINDSAY-GUIMARAES: So, other than that, that was

the only other issue.

THE COURT: Okay. And I understand the argument.

For technical Guidelines purposes, that doesn't get Mr. Brown

anywhere near $2.5 million, as even your calculation

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 45 of 127 PageID #:3482

acknowledges. And I did not mention unintentional errors;

and even assuming that some of the $4.317 million was the

result of unintentional errors, it was a small amount, and

I -- it doesn't get us south of $2.5 million by any stretch.

And given what I believe would be a reasonable unintentional

error rate, it doesn't get us even south of $3.5 million.

Again, intended loss is probably a little bit under

$4.317 million, but I think it's closer to $4.317 million than

it is to $3.5 million.

So, there -- are there any other Guidelines issues

that we need to address?

MS. LINDSAY-GUIMARAES: No, Judge.

THE COURT: Okay. Putting aside the sophisticated

means, I agree with the Probation Office's Guideline

calculation. So, I believe with taking away those two levels,

instead of a -- an offense level of 34, we have an offense

level of 32, with a criminal history category of I, and that

leaves us with a technically calculated Advisory Guidelines

range of 121 to 151 months.

I think we now have to address the 3553(a) factors.

I want to give everybody a seven- or eight-minute break. Why

don't we -- well first, let me ask, does the government have

anybody else who will be addressing the Court this morning

other than you, Miss Harper?

MS. HARPER: No.

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 46 of 127 PageID #:3483

THE COURT: Okay. Ms. Guimaraes?

MS. LINDSAY-GUIMARAES: I'm sorry. What was the

Court's question?

THE COURT: Who other than yourself and Mr. Brown, if

he would like to address the Court, although he is under no

obligation to do so, other than you and Mr. Brown, do you have

anybody else who will be addressing the Court this morning?

MS. LINDSAY-GUIMARAES: I believe I do. Could I just

get a count real quick?

THE COURT: You don't have to tell me now.

MS. LINDSAY-GUIMARAES: Okay. There would be a few.

THE COURT: Okay. And I'd like to give -- and then

the question is when in the course of discussing the 3553(a)

factors would you like them to address the Court? The way I

ordinarily do things is I hear from defense counsel, then the

government, then Probation, and then I turn it back to defense

counsel to reply to anything the government and Probation

said. Where in that order would you like the others to

address the Court?

MS. LINDSAY-GUIMARAES: What about after I get a

chance to respond, but right before Mr. Brown has an

opportunity to speak to the Court?

THE COURT: Is that okay with the government?

MS. HARPER: I have no objection to that.

THE COURT: Okay. And if there's anything that you

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 47 of 127 PageID #:3484

need to address after the others have spoken to the Court,

I'll give you an opportunity. So, that's what we'll do.

We'll come back at 11:30 on that clock.

(Recess had.)

THE CLERK: 13 CR 854, USA versus Brown.

MS. HARPER: Brooke Harper on behalf of the United

States.

THE COURT: Okay. Ms. Guimaraes?

MS. LINDSAY-GUIMARAES: So, yes, moving on to 3553,

right?

THE COURT: Right.

MS. LINDSAY-GUIMARAES: Okay. I just wanted to say a

handful of things about some of the various 3553 factors in

hopes that the Court will take these things into consideration

in figuring out what a fair sentence would be for Mr. Brown in

light of all the evidence.

With respect to his history and characteristics, I

think this is a big one for Mr. Brown. If we go back to his

childhood days, it's clear from the presentence report that

his father died at the age of 6. From that point on, it's my

understanding in talking to some of the family members that

things became pretty chaotic.

His mother appeared to have struggled with bipolar

disorder or something to that effect and was -- engaged in

difficult behavior that put the children in fear in the home.

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 48 of 127 PageID #:3485

And in addition to that, with a very volatile mother and the

loss of their father, when the stepfather came in to the

picture, he was very abusive when he abused alcohol, and he

abused alcohol quite a bit. So things, as the Brown family

has mentioned to me, were very chaotic and very difficult and

distressing.

In spite of all of that, Mr. Brown, at a young age,

had the fortitude and the strength of character to be very

well-behaved. He was described by his siblings as a good kid,

a studious kid, did well in school, was just self-motivated.

And he took his own initiative to become very involved in his

church.

He even -- in junior high and high school, when other

kids tend to get in trouble and experiment with all kinds of

inappropriate behaviors, he went the complete opposite route.

He actually did Bible study and went to church two or three

times a week, and basically hung out with the kids who had

good values, because that's where he wanted to be and that's

how he wanted to be.

In addition, on his own initiative, as soon as he was

able, he was always going out and getting work and worked all

kinds of jobs. He had an excellent work ethic, according to

his sister and his other siblings. And from a very young age,

he was able to go out and earn his own way and buy a car, a

Mustang that he really enjoyed.

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 49 of 127 PageID #:3486

So, from very early on, he showed tremendous promise

in terms of his character and his work ethic, which is very

commendable.

From there, he was motivated to get away from his

family because of the chaos and the fact that he often took

very physical and violent beatings from his -- both his mother

and his stepfather, including a Coke bottle hit over his head.

So, he was motivated to get out of the family home and make a

life for himself, so he -- he was drawn to military service.

And he -- he first -- he started with the U.S. Air

Force, and then he also had some experience with the Army.

And it's very clear -- if you ask anyone who knows Mr. Brown,

it's very clear that his military service to his country

literally means the world to him. He served very honorably in

his various tours, and as I submitted to the Court, he had

very positive response in commendations and awards and honors

and things like that as he served our country.

He also became a medic; and the downside to that was

he was exposed to very, very gruesome, agonizing scenes of the

whole injured and dying, and that was horrific and a difficult

challenge for him to see this on a daily basis. But at the

same time, in the midst of those horrifying scenes that he was

exposed to, as he learned how to be a medic, he learned that

he was darned good at it, and that he was very good at

nurturing and caring for the wounded and the dying.

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 50 of 127 PageID #:3487

And he received a lot of praise from different people

that he assisted as he served as a medic. And there were

various letters that I submitted to the Court in that regard.

So, that was the perfect foundation for him to then

be drawn to the whole world of home health. When he had an

opportunity to join 1-800-CALL-DOC, he described it as really

finding his calling in life, because he was really good at

caring for the homebound. He was really good at engaging with

the patients, giving them the listening ear that they needed,

showing compassion.

And I love the one example of a patient he treated

way back in the '90s, where Dr. Cornwell, who submitted a

letter to the Court, he provided an attachment, an article

that discussed the importance of treating patients in their

homes; and there is a photograph of a patient that Dr. Brown

helped Dr. Cornwell treat, and he was there to -- Mr. Brown

was there to provide the x-ray, the portable x-ray and do some

other things for this woman, who, you know, miraculously

improved just the very next day. And it's really neat to see

the difference in the photograph of her before when she was in

her bed very ill and refusing to go to a hospital, and then

the very next day, after being cared for in her home, to see

that she was very comfortably and happily sitting at her

kitchen table and looked like she had almost completely

recovered.

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 51 of 127 PageID #:3488

And Mr. Brown saw that on a very routine basis, and

he saw the value of treating people in their homes and the

value of -- in terms of monetarily, that it would save the

government tons of money by just sending the doctors directly

to their door, taking care of their needs, keeping them

comfortable, keeping them near their family.

So, as Mr. Brown was able to do this with

Dr. Cornwell, he was more than happy to then take the

opportunity to start his own franchise out here in the

Midwest. So, he uprooted his entire family, came out here,

and continued to pursue that mission because he genuinely

believed in what they were doing, and he genuinely believed

in the fact that he was really good at helping with these

house calls and really connecting with these patients.

And so he saw that as his mission, and it was a

vision for him. And so that was the kind of person he was.

He pursued a meaningful vision. He didn't just say, "Well, I

want to become a dentist because I won't have to work very

much, and I'll make a lot of money." He pursued what was

passionate for him and what had value to him, and I really

respect that about Mr. Brown.

You can also see from some of the exhibits I

submitted that he engaged in regular community service with

the Boy Scouts. He's touched many lives, Kiwanis Club, always

willing to step up and contribute to the community; and that's

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 52 of 127 PageID #:3489

a very commendable and noble trait of Mr. Brown.

Mr. Brown has also been praised by his children and

other relatives who know him and his children. In my

conversations with them, he's been praised as a very good

father, very devoted father. All of his children had very

positive things to say about him and the influence he's had in

their lives. And the children have also had much to comment

on in terms of the unhappy marriage that he has found himself

in and some of the claims against him that have come with

that, and I can address those later if need be.

But the marital discord that he experienced was a

very -- very unfortunate for him because he very much wanted

to be good at everything he did, including being a good

husband and a good father; and with the marriage failing, it's

my sense that that took a little toll on him. But he was

always very devoted to his children.

And in addition, just his work ethic in general. I

love the words that we received from his current employer and

one of his partners that he works with now, the LaLoggias.

They cannot say enough good about Mr. Brown and his work ethic

and how they will literally feel devastated if they have to

lose him because he's provided just an incredible benefit to

them and their business and incredibly hard-working and

reliable and trustworthy. And all of these things are very,

very commendable.

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 53 of 127 PageID #:3490

In addition, Mr. Brown has sought to improve himself

with education, and he's, you know, gained various licensures

and things like that. He's always been in the position -- and

you can see there's a paper trail of it in all the exhibits I

submitted. He's always been striving to do things and

accomplish things and be good at what he does, and so those

are very commendable qualities of Mr. Brown.

So, it's very unfortunate that this -- we have this

offense, because this is clearly the first real glaring mark

on his very commendable record in his 58 years. He carried

that commitment to the home healthcare into Home Care America

when he joined with MediCall and Dr. Lucero, and he was very

devoted to that and very aggressively tied to this idea that

so much can be done for these patients to make them more

comfortable, make them healthier, and make them happier.

And so when he came in to this practice with

Dr. Lucero and started seeing -- at least in his opinion, he

felt that some of the doctors didn't have the passion that he

had developed over his years in the field, he was frustrated

with that and impatient with that. And he wanted the doctors

to genuinely care and provide more services that were actually

meaningful for the patient.

I actually had an opportunity to speak to two people

from home health agencies that actually worked with

Dr. Brown -- I mean Mr. Brown and Dr. Lucero. One, her name

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 54 of 127 PageID #:3491

is Laura Force and another woman named Christie Natrapachko,

and they both had interactions with Home Care America as --

when they worked with home health agencies. And they both

told me that the one thing that was very obvious to them about

Mr. Brown in their interactions with him was that he genuinely

wanted the very best care for all of the patients, and he

openly expressed that. He openly talked about it.

And I would imagine that there are many other

witnesses I could bring before the Court to say that very

thing, but that was what he was there for. He simply would

not have been in the Medicare reimbursement world if he were

in it for, you know, pursuing a very extravagant lifestyle,

because it's not easy to do when you're just being paid by

Medicare.

So, he had all the right motivations, and he early on

became very frustrated with the idea that -- or with the

experience he had that he saw that work was being done and

that the doctors were not getting around to documenting it in

a timely fashion.

And several of the witnesses in trial actually

attested to the fact that the doctors had to be hounded to get

their paperwork done and to -- and what that translated to for

Mr. Brown's purposes was that if the paperwork's not getting

done, it's slowing up the optimal care for the patient. And

so he was very frustrated with that and expressed that very

Case: 1:13-cr-00854 Document #: 386 Filed: 10/05/17 Page 55 of 127 PageID #:3492

openly and very often.

(Mr. Smith entered the courtroom.)

(Ms. DeNicholas exited the courtroom.)

MS. LINDSAY-GUIMARAES: So, it appears to me from how

things developed with the care plan oversight, it appears that

through -- there's this common thread throughout the testimony

that seems to suggest that -- and Arian Shogren was one to

suggest that, that it seemed at Home Care America and MediCall

that a lot of services were actually being provided that may

not actually have been getting documented for because of, you

know, the doctors not appropriately doing it in the

appropriate time or for whatever reason.

And so it's my impression in looking at all of this

that if Mr. Brown would have directed everybody to bill for

everyone on home health, it was because, as he testified, he

had a legitimate belief that the work was actually getting

done, but people are just not doing the paperwork they're

supposed to do. And so he seemed to have a very genuine

belief that he was pushing for, number one, for the doctors

to get things documented and get it documented for what was

actually occurring.

And so I suppose that's where, you know, it evolved

with Dr. Lucero and Dr. Brown suggesting that, you know,

"Well, maybe if we're actually doing the work and we're on the

phone 24/7 talking to all of these people and coordinating

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care," maybe that was their imperfect and improper way, in

retrospect, to account for the work that was actually

happening.

So, it very much could have been a very misguided but

nevertheless good faith effort to capture billing for work

that they believed they were doing.

The 2012 recorded phone call between Dr. Lucero, when

he knew he was being recorded, and Dr. Brown -- excuse me, I

keep saying Dr. Brown -- Mr. Brown, when he didn't know he was

being recorded, I think is enlightening in terms of

Mr. Brown's state of mind. There are a couple of areas where

he suggested that -- he talked about how he felt like they had

a policy that if they were on skilled nursing -- if the

patients were on skilled nursing and they could prove it, then

they should have been billing for it.

And he talked about it in those terms, if they were

on skilled nursing and they could prove it. So, he seemed to

have this idea that the billing, if they could prove that they

were doing the work, you know, they could then bill for it.

And again, misguided, but he seems to suggest in this

call that, you know, they were making a good faith effort to

manage everything that was going on and bill for what they

believed they were entitled to.

In the call, he also talks about how he felt like he

and Lucero hadn't done anything intentionally and that, in

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fact, their intent all along had been to try to put mechanisms

in place to manage the imperfect system that they had in terms

of trying to keep up with all of the changes and trying to get

the documentation they needed from all of these different home

health agencies and just doing their best to manage, you know,

what he would describe as kind of a chaotic situation with

many moving parts and many different people involved.

Toward the end of the phone call with Dr. Lucero, he

actually says -- he says that, "You know, I guess if anything,

I have a concern about Ms. Talaga." And he says, "Did she do

anything that she shouldn't do despite our reassurances" --

or, "despite reassurances?" And when he says that, it leads

me to believe that at the time he was having this phone call

with Dr. Lucero, he's genuinely saying, "Wait a minute. Did

Mary go out of the bounds of what we told her to do? We were

just trying to bill for everyone on home health because we

thought we were legitimately already doing the work," again,

misguided, but he seems to have this good faith sense that,

"Wait a minute, I didn't intend to do this. I didn't intend

to defraud the United States government."

And when he says, "despite reassurances," you know,

it suggests that Mary had assured him that she was billing

according to what he directed her to do and billing

appropriately, and yet there was this lingering question for

Mr. Brown, "What did Mary do that I didn't know about or that

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I didn't authorize?"

So, the evidence at trial, it is what it is, but I

do -- I do still think that there is -- you know, even in a

misguided way, I do still think there is room here for

Mr. Brown to have had a very positive motivation and yet erred

in how he would approach the problem and execute it.

And so when we look at the nature and circumstances

of the offense, I hope that the Court will at the end of the

day at least very strongly consider Mr. Brown and what seemed

to be driving him and what seemed to be his true motivation,

because I would suggest that it doesn't appear to just be pure

blatant greed. He wasn't in this industry to get super rich.

He wasn't motivated to buy a Ferrari, to live a luxurious

lifestyle. He was genuinely in the business because he cared

about the patients.

And coming into it without a business background and

making mistakes in managing things, you know, things could

have slipped away in terms of, you know, what he was trying to

do to keep up with this snowballing effect of lots of

paperwork and lots of things going on; but I think there's

definitely room here to see Mr. Brown as very -- very much

intending and hoping to do the right thing. And so I just

hope that the Court will consider that.

With respect to a couple very important 3553 factors,

specific deterrence and the need to promote respect for the

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law with the Court's sentence, I want to say promote

Mr. Brown's respect for the law in this instance. I will just

point out that he is a first-time offender. He's never served

any time in jail. And it's commonly understood, at least

among the criminal defense bar, that for a first-time offender

who actually has to go to jail, has to do time in prison, the

custodial portion of a sentence is far more harsh for someone

who's never been there before than someone who's done a few

stints in prison and knows what it's like and can handle it.

So, for a first-time offender, any prison time will

be quite a shock and significantly harsh. So, in that

respect, even a shorter sentence can deter Mr. Brown in the

future from committing any further crimes because it's going

to be a traumatic and a shocking experience for him, and that

alone can promote his respect for the law in the future and

prevent him from re-offending.

The Court is also certainly able to keep in mind the

fact that Mr. Brown has already felt the effects of this case

for a few years now, and just the emotional toll that this

kind of a situation can take on someone, I would imagine if

there's any, you know, hint of rational thought left with

Mr. Brown, and there certainly is, that the anxiety and the

stress and the losses that he's already incurred as a result

of this offense, he certainly would not want to go through

this ever again and would do everything in his power to

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avoid it.

So, I think that's another thing that leans towards

specific deterrence. He's also just proven his track record

of being on release that he's fully capable and willing and

able to comply with any of the Court's authority when he is

released and understands that he can't violate and he can't

break the law. And I certainly believe that he has no

intention of ever breaking the law in the future.

His age is another factor. Statistically speaking,

you know, if he's released from prison in his 60s,

statistically speaking, he's less likely to be getting in

trouble.

But I think the most important factor we can look at

with respect to specific deterrence is his background. He has

led a very good life, with doing lots of good things and

always striving to be better.

And so with respect to promoting respect for the law,

if we look at how this sentence can promote the public's

respect for the law, even if the Court were to give him

leniency, I think it would be appropriate, and I think many

people in the public would agree that for the kind of person

that Mr. Brown is, a first-time offender with his positive

background, his age, and his military service and community

service, a lighter sentence wouldn't hinder the goal of

promoting the government -- society's respect for the law

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because they might expect that the Court would give some kind

of leniency for this kind of offender. So, I think that those

principles can be more than satisfied with leniency in this

case.

With respect to general deterrence, I'll just note

briefly that the statute only requires adequate deterrence,

not maximal deterrence with the sentence the Court imposes.

And I would also add that studies have shown that it's really

the certainty of punishment that drives people more in terms

of deterrence than the actual severity or even the swiftness

of the imposition of punishment.

So, the certainty of punishment, when the public is

able to know that people who commit Medicare fraud will get

caught and will be punished, that's the kind of message that

deters, not the fact that a person who committed Medicare

fraud got X amount of years in prison.

So, even a modest prison term for Mr. Brown could

send that adequate message to society that law enforcement

can and will investigate you for Medicare fraud if there is

any kind of suspicious billing practices, and that you will

be punished if you are found guilty of that kind of conduct.

So, these principles can fully be satisfied in

Mr. Brown's case if leniency is imposed, because I think at

the end of the day, all of these things need to be balanced

with the good of his life that he's led up to this point with

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the offense itself.

So, speaking of the offense itself, the Court also

has to take into account the seriousness of the offense. And

when we're talking loss in the millions of dollars, you know,

we certainly can't deny that that would be deemed serious.

Medicare is there for a reason, and it's a tremendous benefit

to the public, and it shouldn't be abused. We don't deny that

at all.

But this -- the seriousness of this offense in terms

of the Court's decision should also take into account the

Federal Sentencing Guidelines and the fact that the fraud

Guideline is driven primarily by the loss amount when so many

other considerations are left out of the equation.

And so when looking at the seriousness of the

offense, like I mentioned before, I hope that the Court will

very strongly consider the intention behind the crime that

should be weighed with, you know, in my opinion, weighed even

more heavily than the actual dollar amount driving the

Guideline, because I think logically speaking, when we look at

someone's state of mind behind an action, the state of mind

behind the action says so much more about the person than the

crime.

And again, I would suggest that in this case,

Mr. Brown's motive did not appear to be blatant greed, but to

keep a business afloat that benefited the patients that he

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genuinely cared about. And his motive appears to be that he

wanted to get paid for the work that he believed that they

were always doing, though not adequately documenting.

Just one moment. I also just wanted to add with

respect to the seriousness of the offense and Mr. Brown's

intention, I hope the Court will at least consider the kinds

of frustrations that the Court heard about at trial with

respect to the sometimes confusing aspects of applying the

different Medicare rules and regulations.

And obviously, the government is absolutely right

that at the end of the day, it's not complicated to -- when

you ask should someone be billed for something that they

didn't receive services for, and obviously, that answer is no,

they shouldn't. But I do think it's important here,

especially in light of Dr. Bayne's letter to the Court where

he talks about still the ongoing process of, you know,

challenges within the Medicare system and the difficulties in

dealing with coding and payments and things like that. I

think that's something that the Court should definitely

consider in thinking about Mr. Brown's intentions here.

The Court is required to impose a just punishment;

and obviously, if we want to talk about a just punishment,

that suggests this idea of retribution, but just also means

fair. And a fair punishment in this case would acknowledge

the problems that we've talked about in the Guidelines

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calculations that we've already gone over, and would account

for the fact that this is Mr. Brown's first and only offense

and the fact that -- and I think this is an important one that

is often not fully addressed, the fact that a fair punishment

will take into account the fact that this is a permanent

punishment for him in the sense that he's now a convicted

felon, and this will continue with him throughout the

remainder of his life.

And aside from this, though, I think it's so

important that the Court consider the positive things about

Mr. Brown. He served our country, that he served others, that

he's done good, and that this is clearly an aberration for

him, to say the least, and that the good he has done certainly

deserves significant weight.

The final thing I would note with respect to -- well,

two final things. Avoiding unwarranted sentencing

disparities, I just wanted to emphasize that in Gall versus

United States, the Supreme Court requires the Court to

individualize the sentence to the individual defendant. And

in United States versus Bartlett, this is a Seventh Circuit

case, it's 567 F.3d rd 901, and it's a 2009 case. The Seventh

Circuit said that the Section 3553 permits a judge to reduce

one defendant's sentence because of another's lenient

sentence, not because of Section 3553(a)(6), but despite it.

So, the Seventh Circuit has acknowledged that the

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Court can certainly look at leniency that others have received

in considering whether Brown also might afford leniency.

And when it comes to the disparity issue here, in

looking at the United States Sentencing Commission's

statistics on sentences that are imposed in federal fraud

cases, the statistics overall suggest that many people who are

convicted of even multi-million-dollar fraud crimes, there's a

significant percentage that actually get straight probation,

and then another significant percentage of people who actually

receive a below-Guidelines sentence. So, it's not outside the

realm of possibility.

And with respect to Mr. Brown, he's not looking at a

required -- you know, a mandatory minimum, so he can

technically get whatever sentence the Court deems appropriate

for him. And the Court can certainly consider multiple facets

of a sentence in structuring a punishment that is sufficiently

addressing all of the purposes of the sentencing statute, but

at the same time providing different means of imposing

restrictions on Mr. Brown's liberty that will be a sufficient

punishment for him.

And so the judge -- this Court has all kinds of

options available in terms of how to fashion that. And

there's tremendous value in some of the alternatives, such as

community confinement and home confinement, because they

reduce the burden on the taxpayers tremendously.

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So, at the end of the day, for all of these reasons,

and in particular, you know, in light of all of the positive

things that people have had to say about Mr. Brown -- I was

completely overwhelmed at the wonderful letters that were

submitted on his behalf. And people don't do that, people

don't come knocking down my door and, you know, urge me for

an opportunity to help unless there's a legitimate reason

behind that. And the legitimate reason is that Mr. Brown has

behaved himself very kindly and very wonderfully outside of

this case in a way that really reflects that he does have good

character, that he is a good person, and that he does deserve

some kind of consideration.

And so for all of these reasons, we are asking the

Court to consider a sentence substantially below what

Probation and the government are asking for, because all of

these taken together seem to suggest to me that a sentence to

the tune of a decade for Mr. Brown would be far in excess of

what the sentencing statute requires. And so we would ask the

Court to go substantially below that. And it certainly can

and still accomplish everything that the Court's required to

accomplish.

THE COURT: All right. Thank you, Ms. Guimaraes.

Government?

MS. HARPER: Yes, your Honor. The Court sat through

the trial in this matter, and I'm not intending to rehash all

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the facts and evidence that were put in at trial. I will

briefly address Ms. Guimaraes's arguments relating to the

nature and circumstances of the offense and the suggestion

that what Mr. Brown was really doing here was not an

intentional fraud, that he didn't intend to steal money from

Medicare for services that weren't provided, and just remind

the Court about the e-mail that Dr. Patel sent to Rick Brown

and Dr. Lucero saying that the documents that he was being

instructed to create would constitute Medicare fraud because

he had already documented all the services he provided.

And the implication from that e-mail, the clear

statements in that e-mail are that, "You can't bill Medicare

for every single home healthcare patient for care plan

oversight because I didn't do care plan oversight for

30 minutes a month on all of my home healthcare patients."

Whatever Mr. Brown's intentions were when he got into

the house call business in the 1990s, I would just like to

remind the Court about Miss Wardzala's testimony, about the

car ride that she had with Rick Brown when she worked at

MediCall in 2007 right around the start of her employment,

when, as Ms. Wardzala reported at trial, Rick Brown said to

her, "The reason I got into this business is because you can

make a lot of money. You're working with the government, and

they pay you a lot."

Mr. Brown himself testified at trial that although

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he didn't particularly like working with Medicare, the thing

he did like is that they paid fast, and they paid reliably.

There are some things that are not in dispute here

today. Ms. Guimaraes has argued about the 3553(a) factors,

but it's worth bearing in mind that Ms. Guimaraes has not

argued that Mr. Brown was not the leader of an extensive fraud

committed at MediCall over the span of many years, and she has

not argued that Rick Brown did not take the stand and perjure

himself in the trial. And he did.

And in that recording that Ms. Guimaraes referenced,

in Mr. Brown's testimony at trial, and in his letter to the

Court, he continues to try to pawn responsibility for this

offense off on Mary Talaga, the others who worked at MediCall,

when, in fact, he is the one who instructed everyone on how to

commit the fraud that was perpetrated here.

In terms of the 3553(a) factors, such as Mr. Brown's

criminal history and other characteristics, it is clear that

this is Mr. Brown's first offense. The Guidelines account for

that. If Mr. Brown had committed other offenses, his criminal

history category would be higher, and he would, therefore, be

facing a higher Guideline sentence than the one he's currently

facing.

And aside from that, I have not so far heard anything

that persuades me that Rick Brown should be treated

differently from other people who commit this type of crime

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and that the Guidelines range is not appropriate for him

because he is in some way particularly unique and differently

situated from people who commit healthcare fraud.

Clearly, he has served the country. He has a

military past, and that is commendable. But there are other

aspects to Mr. Brown -- well, I should also say, it is clear

that he is a charismatic individual. It is clear that he is

personable, and the Court has received many letters that

attest to that.

Being charismatic, personable, displaying the ability

to work hard, these are characteristics that many people who

commit fraud have, charisma, personability are things that

allow people to convince others to go along with the fraud,

that help them get away with committing fraud.

In addition to some of the cases that Ms. Guimaraes

cited, I would like to refer the Court to a Seventh Circuit

case, United States versus Jaderany, in which the court noted,

in relation to treating well-educated people with talents

differently from run-of-the-mill defendants, "We have

cautioned that the Guidelines do not permit district courts to

grant middle-class sentencing discounts because criminals who

have the education and training that enables people to make a

decent living without resorting to crime are more, rather than

less, culpable than their desperately poor and deprived

brethren in crime."

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Mr. Brown has had numerous advantages in his life,

clearly has a work ethic. He received training in the

military. He is an intelligent individual. And rather than

choosing to carry forward in his life and make an honest

living, he chose to steal money from the Medicare program for

years. And rather than his gifts and talents making him less

culpable of that offense, they make him more culpable.

I would also note that in addition to Mr. Brown's

charisma and personability, the Court has seen substantial

evidence of the other side of Mr. Brown. It has heard

statements from the witnesses who were former employees of

MediCall who testified about how they, one by one, in separate

encounters, felt threatened by Mr. Brown.

I have included in the Court's materials for the day

and provided to defense counsel an e-mail that I think is

indicative of the clash between the sort of two sides of

Mr. Brown, where he's talking about donations to scouts, and

he says that he will hold all of the employees' paychecks at

MediCall until they make contributions to the Boy Scouts, and

that if the receptionist working at MediCall doesn't receive

everyone's contributions, he's going to fire her.

Now, there are good things that Mr. Brown has done in

his life, but he also ran the MediCall company kind of like a

tyrant. He bullied employees so that they would go along with

the fraud. He conducted a long-running extramarital affair

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with his codefendant in this case, Ms. Talaga. And the Court

should consider the way that he conducted that business in

addition to and alongside the good things that have been said

about Mr. Brown here today.

I would also like to speak to deterrence principles.

And while it may be true that there -- the need for specific

deterrence as to Mr. Brown is limited, there is a substantial

and overwhelming need for general deterrence as to the type of

crime that Mr. Brown committed. Mr. Brown was operating in an

area of healthcare that is riddled with fraud in Chicago and

across the country, and that is particularly the home health

area of healthcare.

In the Chicago area alone, the Medicare program has

imposed a moratorium on additional companies joining the

program to provide home healthcare services because it is --

the fraud in the area is so prevalent.

Mr. Brown is one of unfortunately a great number who

have entered that area of business and are stealing, robbing

the taxpayers blind. While it may be true that in the case of

one patient, treating the patient in the home saves money, the

fact is Mr. Brown took that population of patients and used it

as a launching board to steal millions of dollars for billing

for services that were not -- never needed and not provided.

Now, the problem is huge. So is the ability to deter

in this area, because these -- the people who commit these

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crimes, they're not run-of-the-mill criminals. They're not

people who are engaging in drug offenses, drug conspiracies.

These are educated people who make rational decisions about

what the risks of getting caught are, and not just the risks

of getting caught, but they can make a risk/benefit

calculation as to, "If I steal this much money from the

Medicare program and I only have to serve a little bit of

time in prison, it's worth it."

It is important to outweigh the risk/benefit

calculation that these criminals do by deter -- by outweighing

the possible benefits that people can gain by stealing the

money and indicating that the downsides, the jail time, the

sentences that people will have to serve are not worth the

money that they can steal.

I will also note that in this area in particular,

in home healthcare, it is clear that the people who are

participating in this community are watching law enforcement

activity and paying attention, when in this area there have

been a number of searches and arrests done in the home

healthcare area; and I will say it is almost -- it is more

common than not that when you go in to conduct searches and

arrests in companies that are committing fraud in this area,

you find the press releases from other businesses where

searches and arrests have been conducted and other law

enforcement activity.

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So, the need for deterrence in this area is

particularly grave. We're talking about a class of criminals

who are particularly susceptible to deterrence, and there is

an understanding and a clear -- a clear attention in that

community right now to law enforcement actions and the

penalties that are being faced by others around them. And I

would just urge the Court to impose a sentence within the

Guidelines for Mr. Brown so that others who are similarly

situated to him and would consider committing the same type of

crime that he committed in taking advantage of a program that

is intended to serve elderly seniors will think otherwise.

THE COURT: Thank you. Anything from Probation? And

do you want to make your appearance?

MR. SMITH: Yes, your Honor. Greg Smith on behalf of

the Probation Office. We have nothing to add.

THE COURT: Okay. Thank you for your Presentence

Investigation Report and sentencing recommendation.

Ms. Guimaraes, would you like to reply to anything

the government has argued?

MS. LINDSAY-GUIMARAES: Judge, could I have just a

moment?

THE COURT: Sure.

MS. LINDSAY-GUIMARAES: We don't have anything

further, Judge.

THE COURT: Okay. So, you mentioned that you might

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have others who will be addressing the Court before Mr. Brown

has the opportunity to address the Court?

MS. LINDSAY-GUIMARAES: Yes. Who would like to --

Your Honor, this will be Mr. Matthew King. If you

could just go to the podium and state your name.

MR. KING: Hello, my name is Matthew King, your

Honor.

THE COURT: Matthew King?

MR. KING: King, K-I-N-G.

THE COURT: Good afternoon.

MR. KING: Good afternoon. I worked with Rick Brown

from 2008 to 2011 at Home Care America and MediCall Physicians

Group. He hired me originally as a medical assistant and

technician.

I think the things that impressed him about me on my

resume were the things that we shared, our military

background, our love for the Boy Scouts, and both being

paramedics. In fact, he did point out on my first day to

everyone at the company that I was an eagle scout, and that

was the thing that impressed him the most. And it -- it

really -- I appreciated it then as I do today, that I had an

employer that would acknowledge that.

And I did not, in my almost four years with the

company, witness the things that he's been accused of; but

toward the end of my tenure there, I became chief medical

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technician and helped with the human resources aspect of the

company. And I had an office that was right next to his, and

he always had an open-door policy. And what I did witness

over those four years is his passion for the work and his

compassion for the patients.

Almost on a daily basis, he'd have practitioners,

doctors in his office that he was encouraging to do more for

the patients, to spend more time with their patients. I know

on more than one occasion, he went out and actually personally

was with a family who had a loved one and family member who

was on hospice and slipping away in those hours, and he wanted

to be there with them because that was the type of

relationship that he built with those patients.

I think that's pretty much all that I can say about

my experience with Rick Brown. He encouraged us, and he came

up with the company motto, together with me when I created the

standard operating procedures and manual for our technicians.

The motto that he always pushed and I almost heard on a daily

basis, was, "Be the best there is at what you do." And I

still incorporate that into what I do today.

I know that he was very frustrated, almost on a daily

basis, with some of the doctors coming back early, not

spending the time with the patients that were required for the

care that he wanted his doctors to provide. And there were a

couple of nights where he was the last one to leave, and I

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would check on him in his office. And it was hard for me to

leave knowing that he was staying and still working hard,

still trying to coordinate things for a patient and their

family.

And I know on one occasion, I asked him, because I

knew he had an hour drive home. I said, "Are you going to

make it home tonight?" And he said, "I have a bedroll, and

I'll sleep here if necessary. I've slept in worse places."

So, that's all. Thank you, your Honor.

THE COURT: Okay. Thank you, Mr. King. And I also

was able to read your letter as well.

MR. KING: Thank you.

MS. LINDSAY-GUIMARAES: This is Michael LaLoggia,

Mr. Brown's employer.

MR. LaLoggia: Hello, your Honor.

THE COURT: Good afternoon.

MR. LaLoggia: Pardon me, because I'm an emotional

person, but we met Rick for the first time in December of

2013, and base based on our conversation -- my son is also

here. And we chose to bring him in as a participant in our

little small remodeling company in Rockford. And so we spent

a real lot of time with him for the last year and eight

months.

And if anything, this is the most sincere and

hardest-working man I've known in very much of my life. I'm

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64 years old. I've been around enough to know a lot of

people; and I have never, ever, ever, even when I found out

about this experience going on in his life, ever suspected him

of anything but total honesty and truth-telling.

He works harder than I do, than most people I've

known, with a determination because he wants to be good at

what he does. He always tells me, "I'm only doing what I told

you I would do." And his military background is very obvious

to me. He has a tendency to be efficient and effective and

determined to do it the right way.

My customers love him. He has gone out and worked at

places where the customer needed help, and he went in and did

extra work that had nothing to do with him being paid. It

wasn't a show-off thing. It wasn't because he's trying to be

a -- putting on any pretenses. He is really as sincere of a

person as I've non.

And if I might ask a question to the government, this

is --

THE COURT: You can say whatever you want. You

can --

MR. LaLoggia: This man has no money, your Honor.

THE COURT: Hold on. When I'm talking, you have to

let me talk.

MR. LaLoggia: Okay. Pardon me.

THE COURT: You can say whatever you want, you can

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ask whatever you want, but nobody is obligated to answer

anything you say.

MR. LaLoggia: I understand that. He came in to us.

He's been going through his divorce proceedings. He's lost

his home. He does not -- his brakes went out. He fixed them

on his own truck. He does what he has to do to try to

navigate his way through his life where he's at.

This is not a person of means. And if he ever had it

and hid it somewhere, it is not evident. And he isn't trying

to hide anything from us, from what we can see.

My son works with him directly. Their offices are

right next to each other. We've grown to love him and care

for him. It will affect us if he has to go away, as things do

in life. But our opinion is he's a wonderful, sincere,

honest, and true, idealistic man; and I find nothing about him

to be wrong or inappropriate.

THE COURT: Okay. Thank you, Mr. LaLoggia. I

appreciate your comments, and I also appreciate the letter

that you submitted.

MR. LaLoggia: Thank you, your Honor, for letting me

speak.

THE COURT: Sure.

MS. LINDSAY-GUIMARAES: This is Ashley Brown,

Mr. Brown's daughter, oldest daughter.

THE COURT: Good afternoon.

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MS. BROWN: Good afternoon, your Honor. I know that

you've heard people speak about -- excuse me -- about my

father on a professional level. What you don't know is the

personal level of the man that he was.

There were many a times that my father would not come

home because he stayed late at his company to make sure that

his patients were taken care of. There were times when the

patients could not afford the services that were provided to

them, so instead of forcing them to pay, he said, "Make me

chocolate chip cookies," and that is how they paid him for

his services.

He would go out

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