Opposition Brief — Jacobson v. United States

No. 93-1275

Tl copay EOF =

In the Supreme Court of the Chuted ems

OcTOBER TERM, 1993

CECIL B. JACOBSON, JR., PETITIONER

UNiTED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAys, II]

Solicito yr bse re ral

JOANN HARRIS

‘ .

Assistant Attorney General

JOSEPH C. WYDERKO

Attorne iY

De pal tment of Justice

Washington, D.C. 20580

202) 514-2217

QUESTIONS PRESENTED

1. Whether the mail fraud, wire fraud, and travel fraud

statutes apply to a doctor’s scheme to defraud his pa-

tients of money.

2. Whether the evidence at trial was sufficient to

Show that petitioner acted with «he intent to defraud his

patients.

3. Whether the district court erred in refusing to in-

struct the jury on the meaning of reasonable doubt.

4. Whether petitioner was denied his constitutional

rights to a fair trial, a public tria’, and confrontation of

his accusers because the district court allowed 11 wit-

nesses who were parents of children fathered by peti-

tioner to use assigned pseudonyms when they testified.

5. Whether the district court improperly departed

upwards from petitioner’s Sentencing Guidelines range.

6. Whether the district court’s reliance on the same

relevant conduct in imposing concurrent terms of five

years’ imprisonment for 35 pre-Guidelines counts and 17

Guidelines counts violated the Double Jeopardy Clause.

7. Whether the court of appeals properly affirmed

petitioner’s convictions in an unpublished opinion that

did not specifically address each of his claims of error.

(I)

Opinions below

Jurisdiction

Statement

Argument

Conclusion

Cases:

TABLE OF CONTENTS

TABLE OF AUTHORITIES

American School of Magnetic Healing v. McAnnulty,

187 U.S. 94 (1902)

Boyenga v. United States, cert. denied, No. 93-6621

(Feb. 28, 1994)

Braxton vy. United States, 111 S. Ct.

Collins

Coy Vv.

Dunbar v.

Furman

Holland

Hopi v.

Jackson

¥.

Towa, 487 U.S. 1012 (1988)

Linder v.

Maryland \y.

Miles v.

NLRB vy

Pereira

Schmuck vy.

Smith

Solem

Vv.

We

Vv.

V.

¥x

Youngblood, 497 U.S. 37 (1990)

Utah,

Wu

Kinder v. United States,

United States,

120 U.S. 480 (1887)

Virginia, 443 U.S. 307 (1979)

pe Ree. 2).

United States, 268 U.S. 5 (1925)

Craig, 497 U.S. 836 (1990)

United States,

156 U.S. 185 (1895)

United States, 720 F.2d 2638 (2d Cir. 1988) .

United States, 348 U.S.

103 U.S. 304 (1881)

1854 (1991) .......000..

sie) -

Amalgamated Clothing Workers, 430 F.2d

FF ae ES: er

United States, 347 U.S. 1 (1954)

Press-Enterprise Co. v.

463 U.S. 277 (1983)

(IIT)

Superior Court of California,

Riverside County, 464 U.S. 501 (1984)

Reilly v. Pinkus, 338 U.S. 269 (1949) .

United States, 489 U.S.

Illinois, 390 U.S. 129 (1968)

Helm,

Page

xc NOS

22

9, 10

19

IV

Cases—Continued: Page

Taylor v. McKeithen, 407 U.S. 191 (1972) .................00. 22

Thompson v. Lynaugh, 821 F.2d 1054 (5th Cir.), cert.

ees, Ge Ue ee ED dicccdndscdebevississatsdacecccocudinens 11

United States v. August, 984 F.2d 705 (6th Cir. 1992),

cont. Gambnd, FOG By Cec Bie Cee wicccksccsccvccccerecscttcenssce 16

United States v. Baynes, 548 F.2d 481 (3d Cir. 1977) ... 22

United States v. Blackburn, 992 F.2d 666 (7th Cir.),

cert. denied, 114 &. Ct. BBB (IGG) cccccccccccccccscccccovevescees 11-12

United States v. Concepcion, 983 F.2d 369 (2d Cir. 1992),

cert. dented, 114 &. Ct. 165 CiGGB) ....ccveresccsececsccscesesscees 16

United States v. Emery, 991 F.2d 907 (1st Cir. 1993) ... 18

United States v. Ferra, 900 F.2d 1057 (7th Cir. 1990) .. 18

United States v. Galloway, 976 F.2d 414 (8th Cir. 1992),

enet. embed, FEB GB. Ge. TO Te) wiccnsvicdcscvsccdentioxsveess >

United States v. Glass, 846 F.2d 386 (7th Cir. 1988) .... 11

United States v. Grayson, 438 U.S. 41 (1978) ............... 15

United States v. Harrison-Philpot, 978 F.2d 1520 (9th

Cir. 1992), cert. denied, 113 S. Ct. 2392 (1993) ............. 16

United States v. Jackson, 921 F.2d 985 (10th Cir.

DMT ACTORS SAE DEINE RES LIE LN 18, 19

United States v. Kikumura, 918 F.2d 1084 (3d Cir.

NN ee 15, 16, 18, 19

United States v. Kim, 896 F.2d 678 (2d Cir. 1990) ........ 18

United States v. Lam Kwong-Wah, 966 F.2d 682 (D.C.

Cir.), cert. denied, 113 S. Ct. 287 (1992) ...................... 16

United States v. Lara, 975 F.2d 1120 (5th Cir. 1992) ... 18

United States v. Lee, 989 F.2d 180 (5th Cir. 1998) ........ 19

United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.

DIL D cdcicdoatideschbdccanzuaededbicaddnsiltetnadabebedaaatatkinahieies 18

United States v. MacDonald, 992 F.2d 967 (9th Cir.

PIPOED cakdcinics eebntshuditapeihbamasaendbcmadiadadidiaididieshddamiabiadinwsan 18

United States v. Masters, 978 F.2d 281 (7th Cir. 1992),

cert. denied, 113 S. Ct. 28S (19GB) .......ccccvcccccscccescscceees 16-17

United States v. Melton, 970 F.2d 1328 (4th Cir. 1992) .. 18

_

Cases—Continued: Page

United States v. Mergerson, 4 F.3d 337 (5th Cir. 1993),

cert. denied, No. 93-7246 (Mar. 21, 1994) ..................008. 16

United States v. Merritt, 988 F.2d 1298 (2d Cir.), cert.

Po RR a ee eee 18-19

United States v. Moore, 423 U.S. 122 (1975) ................. i)

United States v. Moss, 756 F.2d 329 (4th Cir. 1985) ..... 11

United States v. Niven, 952 F.2d 289 (9th Cir. 1991).... 19, 20

United States v. Nolasco, 926 F.2d 869 (9th Cir.), cert.

a ee ee ie Be ED sibdciviiscectcokadsdsdideccapiedecscese 12

United States v. Olmstead, 832 F.2d 642 (1st Cir. 1987),

cert. denied, 486 U.S. 1009 (1988) .............cccccccsscsccceceees 12

United States v. Pergola, 930 F.2d 216 (2d Cir. 1991) ... 19

United States v. Restrepo, 946 F.2d 654 (9th Cir. 1991),

cert. denied, 112 S. Ct. 1666 (UGGR) .ccccccsccvccccccsccccesccess. 16

United States v. Russell, 971 F.2d 1098 (4th Cir. 1992),

Geet, Tee, FES Be Oe, FG Ce vaiivcccecvcdcdccdeciceciovess 11

United Siates v. Sanchez, 967 F.2d 1383 (9th Cir.

DINE wcatsivudaemsaespudwittedaccmsideansdehceminbebenaceeadbasre cniasnnl PEE has 17

United States v. Scarano, 975 F.2d 580 (9th Cir.

PUTT cin hnsisdaladd teva ced dlecudstdemtscsdsidebunebdibaiiaenctierimiiebpentneresias 20

United States v. Shoupe, 988 F.2d 440 (8d Cir. 1993) ... 18

United States v. St. Julian, 922 F.2d 563 (10th Cir.

TEE ccsbslisia hs dit snadimiindslied Seni aki bentedice ht tubien dia danbiumodaienaperdynenes 16

United States v. Tardiff, 969 F.2d 1283 (1st Cir. 1992) ... 15

United States v. Taylor, 997 F.2d 1551 (D.C. Cir. 1993) .. 12

United States v. Townley, 929 F.2d 365 (8th Cir. 1991) ... 16

United States v. Tucker, 404 U.S. 443 (1972) ............... 15

Victor v. Nebraska, No. 92-8894 (Mar. 22, 1994) .......... 11

Waller v. Georgia, 467 U.S. 39 (1984) ......cccccccccceccesccscess 13, 14

Whiteside v. Parke, 705 F.2d 869 (6th Cir.), cert. denied,

a cdauebanabiianodemernnie 12

Williams v. New York, 337 U.S. 241 (1949) .................. 15

Williams v. United States, 112 S. Ct. 1112 (1992) ..... 17, 18,19

Wremenem, F690, TPF US. TES (IGF) cncacssesccteseccescvecscesesses 11

Vi

Constitution, statutes and rules:

U.S. Const. :

Art. 1, § 9, Cl. 3 (Ex Post Facto Clause)

Amend. V (Double Jeopardy Clause)

Amend. VI

J ESC: RIE ciacsabintnecadaiaiiiiletc betel ndgautntacsndcenseietes

Sentencing Guidelines:

§ 1B13

BS BAPE cS sevketedcsdaccevakanweskenseskassetes syn ck bevceuddcesnesseceeenees

GS SP'E.E: cccccosctecabetenaeiemeda las ees o tans vedscuindin

SSH 2 BEER re vacate eis ce etelew scecedecknkascdecteesinons

S GAG vccvacccwsiscae eet odin dite eiees

Bn) FS Re RS ON a et Re

9 DIES cécccicsvcecnseas ie ain

S GIRBD. »svsesecsnsacaen eee

§ 6A1.3

6

1s

1x

6,15, 17

6,17

a

Jn the Supreme Court of the Tnited States

OcTroOBER TERM, 1992

No. 93-1275

CeECIL B. JACOBSON, JR. PETITIONER

.

JINITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUTT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-11a) is

unreported, but the judgment is noted at 4 F.3d 987

(Table). The opinion of the district court (Pet. App. |6a-

24a) is reported at 785 F’. Supp. 563.

JURISDICTION

The judgment of the court of appeals was entered on

September 3, 1993. A petition for rehearing was denied

on November 8, 1993. Pet. App. 27a. The petition for a

writ of certiorari was filed on February 7, 1994 (a Mon-

day). The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Kastern District of Virginia, petitioner

was convicted on 32 counts of mail fraud, in violation of

18 U.S.C. 1341; ten counts of wire fraud, in violation of

18 U.S.C. 1343; four counts of travel fraud, in violation of

18 U.S.C. 2314; one count of perjury, in violation of

18 U.S.C. 1621; and five counts of false declarations, in

violation of 18 U.S.C. 1623. He was sentenced to 60

months’ imprisonment, to be followed by three years of

supervised release, and fined $75,000. Petitioner also

was ordered to pay $39,205 in restitution. Pet. App. 4a &

n.2.

1. From 1976 to 1988, petitioner, an obstetrician by

training, operated Reproductive Genetics, Ine., in

Vienna, Virginia. His medical practice consisted pri-

marily of performing amniocentesis on pregnant women

and treating other patients for infertility. Although he

had no advanced training in infertility medicine, peti-

tioner represented both to his patients and to the public

that he was an infertility specialist. Pet. App. 2a; Gov’t

C.A. Br. 6.

a. Petitioner defrauded numerous infertility patients

of money by deceiving them into believing they had be-

come pregnant as a result of his treatment when he knew

they were not pregnant. After making false guarantees

of success to his patients, petitioner administered regu-

lar injections of Human Chorionic Gonadotropin (HCG),

a hormone derived from the urine of pregnant women

that mimicked the signs of pregnancy. Although HCG

has been legitimately used in the treatment of infertil-

ity, petitioner’s practice was to give his patients re-

peated injections of large dosages of HCG for up to a year

or more. Following the HCG injections, many patients

3

had delayed menstrual periods, bloating, breast tender-

ness, nausea, elevated basal body temperatures, and

other symptoms associated with pregnancy, and they

became convinced that they were pregnant as a result of

petitioner’s treatment. Petitiondr never disclosed to his

patients that their symptoms were a natural con-

sequence of the HCG injections, and were not

necessarily the result of pregnancy. Petitioner reaped

substantial profits from his regular use of HCG and the

high volume of patient appointments that his treatment

required. Pet. App. 2a-3a; Gov’t C.A. Br. 7-9.

After petitioner’s patients began to experience the

symptoms of pregnancy, petitioner misled them into be-

lieving that they were in fact pregnant by using labora-

tory tests that he knew would test positive for preg-

nancy due to his HCG treatment. Rather than using

blood tests to confirm a patient’s pregnancy, petitioner

repeatedly administered to his patients qualitative tests

that merely revealed the minimum threshold level,

rather than the actual level, of HCG in the patient’s sys-

tem in order to create false-positive pregnancy tests.

When questioned by his patients, petitioner flatly denied

that his HCG treatment could trigger false-positive test

results. Since the HCG injections delayed a patient’s

menstrual period for at most two weeks, petitioner also

prescribed progesterone suppositories to patients who

began bleeding. When the combination of HCG and pro-

gesterone did not prevent menstrual bleeding and cramp-

ing for some patients, petitioner performed additional

pregnancy tests to reassure the patients that they were

pregnant. Pet. App. 3a; Gov’t C.A. Br. 9-15.

Petitioner, who was an experienced sonographer, mis-

led many patients into believing that they were pregnant

for as many as 20 to 23 weeks by performing weekly

sonograms. Although nothing inside a patient’s womb

4

could be mistaken for a fetus during a sonogram, peti-

tioner repeatedly told patients that he saw the arms and

legs of their fetuses and that he observed the fetuses

sucking their thumbs. Petitioner, who called the fetuses

“Junior,” also told patients that he was taking measure-

ments of their fetuses and observing their heartbeats.

When a patient could not see the fetus on the sonogram

screen or ultrasound photograph, petitioner would draw

a fetus on the photograph with a magic marker. What pe-

titioner indicated were fetuses often were actually

nearby organs or fecal matter. Pet. App. 3a; Gov’t C.A.

Br. 16-22.

After misleading his patients into believing that their

pregnancies were progressing to term, petitioner told

his patients that their fetuses had died. When patients

asked about the need for a Dilatation and Curettage

(D & C) treatment to remove the dead fetus from the

uterus, petitioner discouraged the procedure by telling

his patients that it could lead to a piercing of the uterus

necessitating a hysterectomy. He also told patients that

D & C treatments were unnecessary because the dead

fetuses would be “resorbed” back into their bodies.

Petitioner would then start the patients on a new cycle

of HCG injections and pregnancy tests. Pet. App. 4a;

Gov't C.A. Br. 22-27.

b. In addition to deceiving patients into believing they

were pregnant when they were not, petitioner also ran a

donor insemination program in which he fraudulently in-

seminated and impregnated at least 15 patients with his

own sperm. He falsely represented to patients, among

other things, that the donor used to inseminate them

would never know their identity, would match the physi-

cal characteristics of the patient’s husband, and would be

used to father only two or three other children. As a re-

sult, petitioner’s patients were induced to pay substan-

5

tial amounts of money to bear children actually fathered

by petitioner. Gov’t C.A. Br. 27-31.

c. Petitioner made false statements concerning his

infertility treatment in an affidavit filed in response to a

civil injunctive action brought by the Federal Trade

Commission in 1989. He also made false statements ¢ n-

cerning his infertility treatment, his donor insemination

program, and his financial affairs in five depositions

taken in connection with civil actions filed by his pa-

tients. Gov’t Opp. to Pet. for Reh’g 5; Presentence Re-

port (PSR) 7-8.

2. Prior to trial, the government sought a protective

order to close the courtroom to the public and the press

during the testimony of 11 witnesses who were parents

of children fathered by petitioner. The district court de-

clined the government’s request. Pet. App. 16a-22a. In-

stead, the court decided to allow the parent witnesses to

use assigned pseudonyms when they testified. /d. at 22a-

23a, 25a-26a. The court found that “[t]he use of

pseudonyms is a narrowly tailored measure because it

shields the identity of the witnesses from the press and

the public only.” Jd. at 23a. The court also concluded

that “[ujse of the pseudonyms will not interfere with

[petitioner’s] preparation for trial, with his ability to

cross-examine witnesses at trial, or with the scope of the

examination” because “[petitioner] and his counsel will

know the true identity of the parents.” bid.

At trial, the 11 parent witnesses called by the govern-

ment used assigned pseudonyms when they testified,

with the pseudonym placed on a placard to remind coun-

sel not to use their true names. In addition, nine of the

parent witnesses were.allowed slightly to alter their ap-

pearance by wearing wigs and makeup. Gov’t C.A. Br. 47

n.65. During its jury charge, the court instructed the

6

jury not to draw any inference of guilt or innocence from

the parent witnesses’ use of pseudonyms. /d. at 49.

3. Because the offenses chai‘ged in 35 counts of the

indictment were committed before the effective date of

the Sentencing Guidelines, petitioner was subject t» pre-

Guidelines sentences on those counts. The disirict

court sentenced petitioner to concurrent terms of five

years’ imprisonment on each of those counts. Pet. App.

Ya; Gov't C.A. Br. 59.

With respect to the other 17 counts, the presentence

report grouped the 11 fraud counts and calculated peti-

tioner’s adjusted offense level under Sentencing Guide-

lines § 2F 1.1 on those counts to be 17. That calculation

included a five-level adjustment under § 2F'1.1(b)(1)(F) for

a loss incurred by petitioner’s conduct of $85,600. In

computing the amount of the loss, the probation officer

included as relevant conduct under Guidelines § 1B1.3

the total amount of fees paid by the patients who were

named in the indictment or who testified at trial. PSR

Worksheet A. After separately determining the adjusted

offense levels for the six perjury counts, the presentence

report determined that petitioner’s combined adjusted of-

fense level was 20. PSR Worksheet B. With a criminal

history category of I, petitioner’s Guidelines sentencing

range was 33-41 months’ imprisonment. PSR 19.

Departing upwards, the district court sentenced peti-

tioner to 60 months’ imprisonment, to run concurrently

with the sentences on the pre-Guidelines counts. Pet.

App. 9a-10a. The court justified its upward departure on

the grounds that petitioner had inflicted extreme psy-

chological injury on the victims under Guidelines

§ 5K2.3 (Policy Statement), that the offenses had

involved extreme conduct under § 5K2.8 (Policy

Statement), and that § 2F1.1 failed to account fully for

the harmful conduct. Pet. App. 10a.

7

4. The court of appeals affirmed. Pet. App. la-lla. It

rejected petitioner’s claim that the use of the mails,

wires, and interstate travel was not an integral part of

his scheme to defraud his patients. /d. at 5a-9a. Relying

on Pereira v. United States, 347 U.S. 1 (1954), and

Schmuck v. United States, 489 U.S. 705 (1989), the court

concluded that petitioner’s use of the mails “was, with-

out question, a sufficient predicate for the Government’s

invocation of 18 U.S.C. § 1841” because “[t]he mailings

charged by the indictment were incident to essential el-

ements of [petitioner’s] fraud: inducing, treating, and

billing credulous patients who believed they needed his

services.” Pet. App. 7a-8a. The court similarly con-

cluded that “[blecause the telephone calls cited in the in-

dictment were incident to [petitioner’s] ability to sched-

ule patient appointments at which his fraudulent treat-

ments could be administered, * * * they constitute a

proper predicate for the wire fraud counts [under

18 U.S.C. 1343].” Jd. at 8a. The court further found that

“the indictment properly charged [petitioner] with in-

ducing his out-of-state patients to travel to Virginia in

order to undergo fraudulent medical treatment at his in-

fertility clinic in violation of 18 U.S.C. § 2814.” 7d. at 9a.

The court of appeals also rejected petitioner’s claim

that the district court improperly departed upwards from

the sentencing range on the 17 counts to which the Sen-

tencing Guidelines applied. Pet. App. 9a-lla. The court’s

“review of the record disclose[d] that the district court’s

findings of extreme conduct, extreme psychological in-

jury, and the guidelines’ inability to capture fully the

harm of [petitioner’s] behavior are not clearly erro-

neous.” Jd. at 10a. It also noted that “the three cate-

gories of departure invoked by the sentencing court are

plainly contemplated as proper bases for departure under

the sentencing guidelines.” Jd. at lla. The court con-

8

cluded that the district court did not abuse its discretion

“by departing upwards from [petitioner’s| established

guidelines sentencing range to the extent of imposing an

additional nineteen months’ imprisonment upon him.”

Ibid,

Finally, the court of appeals observed that its “careful

review of the record and the arguments of counsel dis-

closes that |petitioner’s] remaining assignments of error

are wholly without merit, and therefore warrant no dis-

cussion on our part.” Pet. App. lla (footnote omitted).

ARGUMENT

1. Petitioner first contends (Pet. 16-21) that his pros-

ecution under the mail fraud, wire fraud, and travel fraud

statutes constituted improper federal regulation of his

medical practice.

Petitioner is not exempt from prosecution under the

federal fraud statutes applied in this case on the theory

that he was merely engaging in the professional practice

of medicine. The evidence showed that petitioner

defrauded patients of money by deceiving them into

believing that they were pregnant, that their preg-

nancies were progressing to term, and that their babies

had suddenly died and been resorbed back into their bod-

ies. The evidence further showed that petitioner de-

frauded patients of money by lying to them about the

identity of the donor of the sperm in his donor insemina-

tion program. Thus, the evidence showed that petitioner

engaged in classic schemes to defraud: he repeatedly de-

ceived, and lied to, his patients about their medical

treatment in order to obtain their money.

There is likewise no merit in petitioner’s contention

that the federal fraud statutes were applied in this case

so as to create substantive federal standards of profes-

sional medical practice. While there was ample expert

“

9

testimony at trial that petitioner’s infertility

treatments far exceeded the bounds of recognized and

acceptable medical practice, the allegations of fraud

against petitioner are not predicated on his deviation

from the standards of acceptable medical practice.

Rather, petitioner’s fraud convictions are based on the

evidence that he knowingly made false representations

to his patients concerning the nature and effect of his

treatments.’ Consequently, petitioner’s claim does not

‘arrant further review.

2. Petitioner next contends (Pet. 21-24) that the evi-

dence at trial was insufficient as a matter of law to show

that he acted with the requisite criminal intent because

there wes conflicting expert testimony on the appropri-

ateness of his medical treatment. Petitioner relies (Pet.

23) on two cases involving the predecessor civil counter-

part to 18 U.S.C. 1341, see American School of Magnetic

Healing v. McAnnulty, 187 U.S. 94 (1902), and Reilly v.

Pinkus, 338 U.S. 269 (1949), but those cases do not sup-

port his contention. In McAnnulty, the Court set aside

the Postmaster General’s fraud order, which was based

on a finding that it was false and fraudulent for the

American School of Magnetic Healing to claim that a

proper mental state could cure physical ills. 187 U.S. at

105-104. Because there were two widely held schools of

opinion concerning whether the mind could affect bodily

diseases, the Court concluded that scientific knowledge

had not advanced to the point where an intent to deceive

| Neither Linder v. United States, 268 U.S. 5 (1925), nor United

States v. Moore, 423 U.S. 122 (1975), has anything to do with this

case. See Pet. 19. Both involved prosecutions of physicians under

the controlled substances statutes and turned on whether those

statutes were properly interpreted to cover the specific physician

conduct at issue.

10

could be attributed to a person asserting either opinion.

Id. at 104. The Court subsequently explained in Pinkus

that the McAnnulty holding did not “prescrible] an in-

exorable rule that automatically bars reliance of the

fact-finding tribunal upon informed medical judgment ev-

ery time medical witnesses can be produced who blindly

adhere to a curative technique thoroughly discredited by

reliable scientific experiences.” 338 U.S. at 274. Rather,

the Court in Pinkus “acceptled] the McAnnulty deci-

sion as a wholesome limitation upon findings of fraud un-

der the mail statutes when the charges concern medical

practices in fields where knowledge has not yet been

crystallized in the crucible of experience.” /bid.

Contrary to petitioner’s claim, there was virtually no

conflict among the expert witnesses in this case con-

cerning the appropriateness of petitioner’s course of

treatment for specific patients. Indeed, petitioner’s ex-

pert witnesses generally agreed with the government’s

experts that many of petitioner’s representations to his

patients had been.false as a matter of medical fact. The

expert witnesses, for example, agreed that, contrary to

petitioner’s representations to his patients, the sus-

tained administration of HCG injections could cause

false-positive pregnancy tests, particularly given the

highly sensitive qualitative tests that petitioner used.

Gov't C.A. Br. 11-15, 32-86. The experts also generally

agreed that, once again contrary to petitioner’s repre-

sentations to his patients, the photographs of the sono-

grams that petitioner administered to his patients did

not show fetuses. /d. at 16-22, 32-36. In addition, the ex-

perts agreed that there was no evidence that advanced

fetuses could resorb back into the mother’s body. /d. at

24 n.30. Thus, although the expert witnesses may have

disagreed over the theoretical validity of petitioner’s

infertility treatment, they did not differ as to whether

1]

petitioner’s representations to his patients during the

course of their treatment were false.

3. Petitioner also contends (Pet. 24-25) that the dis-

trict court erred in failing to define for the jury the con-

cept of “reasonable doubt.” That contention does not

warrant this Court’s review.

Due process requires a trial court to instruct the jury

that the government must prove its case beyond a rea-

sonable doubt. See Jackson v. Virginia, 443 U.S. 307, 320

n.14 (1979); In re Winship, 397 U.S. 358 (1970). This

Jourt, however, has never held that the Constitution re-

quires a court to define reasonable doubt for the jury. To

the contrary, the Court recently noted in Victor v.

Nebraska, No. 92-8894 (Mar. 22, 1994), slip op. 1, that “the

Constitution neither prohibits trial courts from defining

reasonable doubt nor requires them to do so as a matter

of course.” See also Holland v. United States, 348 U.S.

121, 140 (1954); Dunbar v. United States, 156 U.S. 185, |

199 (1895); Hopt v. Utah, 120 U.S. 430, 440-441 (1887); |

Miles v. United States, 103 U.S. 304, 312 (1881).

In light of the difficulties in defining reasonable doubt,

three circuits take the view that the trial judge should

not define reasonable doubt for the jury, since the defini-

tion is likely to add little to the jury’s understanding of

the concept and may in some instances lead to jury con-

fusion. See United States v. Glass, 846 F.2d 386, 387 (7th

Cir. 1988); United States v. Moss, 756 F.2d 329, 333 (4th

Cir. 1985); Thompson v. Lynaugh, 821 F.2d 1054, 1060-

1061 (5th Cir.), cert. denied, 483 U.S. 1035 (1987).° Four

2 The Fourth and Seventh Circuits disagree as to whether rea-

sonable doubt should be defined if the jury asks the court to do so.

Compare United States v. Russell, 971 F.2d 1098, 1108 (4th Cir.

1992) (court should define if jury is “demonstrably confused or un-

certain”), cert. denied, 113 S. Ct. 1013 (1993) with United States v.

12

other circuits have held that it is not error for a district

court to refrain from defining reasonable doubt. United

States v. Taylor, 997 F.2d 1551, 1557-1558 (D.C. Cir. 1993);

United States v. Nolasco, 926 F.2d 869, 872 (9th Cir.) (en

bane), cert. denied, 112 S. Ct. 111 (1991); United States v.

Olmstead, 832 F.2d 642, 646 (1st Cir. 1987), cert. denied,

486 U.S. 1009 (1988); Whiteside v. Parke, 705 F.2d 869,

871-873 (6th Cir.), cert. denied, 464 U.S. 843 (1983). Since

the district court’s refusal in this case to instruct on the

meaning of reasonable doubt is consistent with the clear

trend of recent authority in the federal courts, and does

not conflict with any decision of any other court of

appeals, petitioner’s claim merits no further review.

4. Petitioner next contends (Pet. 25-27) that he was

denied his constitutional rights to a fair trial, a public

trial, and confrontation of his accusers when the district

court allowed the 11 witnesses who were parents of

children fathered by petitioner to use assigned

pseudonyms when they testified. Petitioner’s principal

claim (Pet. 25-26) is that the procedure of allowing the 11

parent witnesses to testify using pseudonyms violated

the Confrontation Clause by depriving him of a “face-to-

face meeting” with his accusers. See Maryland v.

Craig, 497 U.S. 836, 844 (1990) (“the Confrontation

Clause guarantees the defendant a face-to-face meeting

with witnesses appearing before the trier of fact”)

(quoting Coy v. lowa, 487 U.S. 1012, 1016 (1988)). In

Craig, the Court explained that “[t]he combined effect of

[the] elements of confrontation—physical presence, oath,

cross-examination, and observation of demeanor by the

trier of fact—serves the purposes of the Confrontation

Blackburn, 992 F.2d 666, 668 (7th Cir.) (court should refuse re-

quests for definition), cert. denied, 114 S. Ct. 393 (1993). That is-

sue is not presented in this case.

13

Ciause by ensuring that evidence admitted against an

accused is reliable and subject to the rigorous

adversarial testing that is the norm of Anglo-American

criminal proceedings.” 497 U.S. at 846. The Court

concluded in Craig that “a defendant’s right to confront

accusatory witnesses may be satisfied absent a physical,

face-to-face confrontation at trial only where denial of

such confrontation is necessary to further an important

public policy and only where the reliability of the

testimony is otherwise assured.” Jd. at 850.

In this case, petitioner obviously was not deprived of a

“physical, face-to-face confrontation” with the 11 parent

witnesses who used assigned pseudonyms. Rather, peti-

tioner confronted those witnesses face-to-face when they

testified in open court.” Moreover, each of the witnesses

testified under oath and was fully cross-examined by pe-

titioner, and the jury was able to observe each witness’s

demeanor. Thus, there is plainly no merit in peti-

tioner’s claim that he was deprived of his Confrontation

Clause rights at trial.

Nor is there any merit in petitioner’s claim that he

was deprived of a public trial. In Waller v. Georgia, 467

U.S. 39, 45 (1984), the Court made clear that “the right to

an open trial may give way in certain cases to other

rights or interests, such as the defendant’s right to a

fair trial or the government’s interest in inhibiting dis-

* Petitioner suggests (Pet. 25) that he was deprived of a physi-

cal, face-to-face confrontation because the witnesses were allowed

“to appear in disguise and under obviously fictitious names.” The

district court, however, merely allowed the witnesses slightly to al-

ter their appearances by wearing wigs and makeup. Gov't C.A.

Br. 47 n.65. Moreover, petitioner was advised of the true identity

of each witness long before trial in accordance with the terms of

the protective order. Pet. App. 23a, 25a-26a. Cf. Smith v. Illinois,

5390 U.S. 129 (1968).

14

closure of sensitive information.” The Court explained

that “[t]he presumption of openness may be overcome

only by an overriding interest based on findings that clo-

sure is essential to preserve higher values and is nar-

rowly tailored to serve that interest.” /bid. (quoting

Press-Enterprise Co. v. Superior Court of California,

Riverside County, 464 U.S. 501, 510 (1984)). In this case,

the district court refused the government’s request to

close the trial to the public during the testimony of the

11 parent witnesses. Rather, the district court selected

the less drastic measure of using pseudonyms for the

witnesses. Pet. App. 20a-23a. Although the use of

pseudonyms deprived the public of knowledge of the

identity of the witnesses, that limitation was justified by

a compelling interest in protecting the well-being of

children. Based on affidavits from a psychologist and a

child psychiatrist, the district court found that “[i]n

order to safeguard the psychological well-being of [the]

children, information regarding their paternity should

be revealed to them in a careful manner controlled and

directed by their parents.” /d. at 2la. The district court

thus concluded that “keeping secret the true identity of

the parents and their children is necessitated by the

compelling and overriding governmental interest in the

psychological health and welfare of the children involved —

in this matter.” /bid. Accordingly, petitioner’s claim

that he was deprived of his Sixth Amendment right to a

public trial warrants no further review.’

‘4 There is likewise no merit in petitioner’s claim (Pet. 26) that

the use of pseudonyms for the 11 parent witnesses, along with

identifying placards, deprived him of a fair trial by suggesting

that the children’s biological relationship with petitioner was

“stigmatizing.” The placards were simply used to remind counsel

not to use the witnesses’ real names, and petitioner did not object

to that procedure at trial. Gov't C.A. Br. 47 n.65. In any event,

15

5. Petitioner also contends (Pet. 27-28) that the dis-

trict court improperly departed upwards from his Sen-

tencing Guidelines range because his victims had suf-

fered “extreme psychological injury” under Guidelines

§ 5K2.3 (Policy Statement) based on unverified hearsay

statements from the victims. He further contends (Pet.

28-29) that the district court improperly failed to

structure the extent of the upward departure by analogy

to other provisions of the Sentencing Guidelines.

Neither contention warrants this Court’s review.

a. There is no merit in petitioner’s claim (Pet. 27-28)

that the district court improperly relied on letters from

petitioner’s former patients in finding that his victims

had suffered “extreme psychological injury” under

Guidelines § 5K2.3. In United States v. Tucker, 404 U.S.

443, 446 (1972), this Court explained that a sentencing

judge may “conduct an inquiry broad in scope, largely

unlimited either as to the kind of information he may

consider, or the source from which it may come.” See

also United States v. Grayson, 438 U.S. 41, 49-50 (1978);

Williams v. New York, 337 U.S. 241, 250-251 (1949).

That principle is embraced in the Sentencing Guidelines,

which allow a district court to consider any reliable evi-

dence, including hearsay, at sentencing. See Guidelines

§ 6A1.3 (Policy Statement); see also United States v.

Tardiff, 969 F.2d 1283, 1287 (1st Cir. 1992) (victim impact

statements are “the type and kind of evidence on which

sentencing courts have commonly relied”).

Relying on United States v. Kikumura, 918 F.2d 1084

(3d Cir. 1990), petitioner claims (Pet. 27-28) that the

evidence of psychological injury was insufficient to

the district court specifically instructed the jury against drawing

inferences of guilt or innocence from the witnesses’ use of

pseudonyms. Gov’t C.A. Br. 49.

16

justify an upward departure from the Guidelines

sentencing range, because the departure must be

established by clear and convincing evidence. The courts

of appeals have generally held, however, that factual

findings under the Sentencing Guidelines need not be

established by more than a preponderance of the

evidence. See, e.g., United States v. Lam Kwong-Wah,

966 F.2d 682, 685-686 (D.C. Cir.) (collecting cases), cert.

denied, 118 8. Ct. 287 (1992); United States v. Restrepo,

946 F.2d 654, 655-656 (9th Cir. 1991) (en bane) (same),

cert. denied, 112.8. Ct. 1564 (1992). Although the court of

appeals in Aikumura required proof by clear and

convineing evidence to support the district court's 22-

level upward departure in the defendant’s offense level

under 18 U.S.C. 3553(b), see 918 F.2d at 1100-1102, the

departure in that case resulted in an increase in the

defendant’s sentence from 30 months’ imprisonment to 80

years’ imprisonment. /d. at 1100. Some courts of appeals

have left open the question whether a higher standard of

proof may be appropriate in such exceptional cases. See

United States v. Mergerson, 4 F.3d 337, 843-3844 (5th Cir.

1993), cert. denied, No. 93-7246 (Mar. 21, 1994); United

States v. Concepcion, 983 F.2d 369, 390 (2d Cir. 1992),

cert. denied, 114 S. Ct. 168 (1993); United States v. Lam

Kwong-Wah, 966 F.2d at 687-688; United States v.

Restrepo, 946.F.2d at 661 & n.12; United States v.

Townley, 929 F.2d 365, 369-370 (8th Cir. 1991); United

States v. St. Julian, 922 F.2d 568, 569 n.1 (10th Cir. 1990);

see also Kinder v. United States, 112 S. Ct. 2290, 2291-

2292 (1992) (White, J., dissenting from denial of

certiorari). We are unaware, however, of any court of

appeals that has followed Kikumura. See United States

v. August, 984 F.2d 705, 713-714 (6th Cir. 1992) (per

curiam), cert. denied, 114 S. Ct. 158 (1993); United States

v. Harrison-Philpot, 978 F.2d 1520, 1524 & n.1 (9th Cir.

17

1992), cert. denied, 113.8. Ct. 2492 (1993); United States v.

Masters, 978 F.2d 281, 286-287 (7th Cir. 1992), cert.

denied, 115.8. Ct. 2833 (1993); United States v. Sanchez,

967 F.2d 1383, 1386-1387 (9th Cir. 1992). Thus, it is

highly unlikely that any court of appeals would find that

the district court’s 19-month upward departure from the

top of petitioner’s sentencing range was sufficiently

extraordinary to warrant application of a higher

standard of proof. See, ¢.g., United States v. Galloway,

976 F.2d 414, 425 (8th Cir. 1992) (en bane), cert. denied,

113.8. Ct. 1420 (1993).

In any event, as the court of appeals noted, the district

court’s upward departure in this case was based not only

on the letters from petitioner’s former patients but also

on the testimony of petitioner’s victims at trial. Pet.

App. 10a. Moreover, the district court based its upward

departure not only on the ground that petitioner had in-

flicted extreme psychological injury on the victims un-

der Guidelines § 5K2.3 but also on two other grounds:

that the offenses involved extreme conduct under § 5K2.x

(Policy Statement) and that the fraud guideline, 3 2F'1.1,

failed to account fully for the harmful conduct. Pet. App.

10a. The district court did not err in concluding that a

19-month upward departure was “reasonable” based on

these three grounds.

b. There is likewise no merit in petitioner’s claim

(Pet. 28-29) that the district court improperly failed to

structure the extent of the upward departure by analogy

to other provisions in the Sentencing Guidelines. As

this Court noted in Williams v. United States, 112 S. Ct.

1112, 1120 (1992), the extent of a district court’s depar-

ture from the Guidelines range is reviewed for reason-

ableness under 18 U.S.C. 3742(f)(2). In assessing reason-

ableness, the Court explained, “a court of appeals

[should] examine the factors to be considered in imposing

18

a sentence under the Guidelines, as well as the district

court’s stated reasons for the imposition of the particu-

lar sentence.” 1128S. Ct. at 1121.

Although the Sentencing Guidelines recommend a

procedure for departures from the Guidelines sentencing

range based on a defendant’s criminal history, see

Guidelines § 4A1.3 (Policy Statement), they do not

recommend any specific procedure for departures under

18 U.S.C. 3553(b) and Guidelines § 5K2.0 (Policy

Statement) based on aggravating or mitigating

circumstances. See, e.g., United States v. Shoupe, 988

F.2d 440, 445 n.7 (8d Cir. 1993). In order to determine

whether a departure is reasonable under 18 U.S.C.

3742(f)(2), a number of courts of appeals have recom-

mended that district courts structure upward

departures—both as to the aggravating circumstances

relied upon and the degree of departure—by analogy to

other specific offense characteristics that the Guidelines

take into account. See, e.g., United States v. Lara, 975

F.2d 1120, 1126 (5th Cir. 1992); United States v. Melton,

970 F.2d 1328, 1334 (4th Cir. 1992); United States v. Lira-

Barraza, 941 F.2d 745, 747-751 (9th Cir. 1991) (en banc);

United States v. Jackson, 921 F.2d 985, 990-991 (10th Cir.

1990) (en bane); United States v. Kikumura, 918 F.2d at

1112-1113; United States v. Ferra, 900 F.2d 1057, 1062-

1063 (7th Cir. 1990); United States v. Kim, 896 F.2d 678,

683-685 (2d Cir. 1990). The First Circuit appears to be

the only court of appeals that has explicitly rejected that

approach. See United States v. Emery, 991 F.2d 907, 913

n.10 (1993). At the same time, most of the courts of

appeals have also indicated that district courts need not

mechanically justify their departures by analogy in

every case so long as the court explains on the record

how it determined the magnitude of the departure. See,

e.g., United States v. MacDonald, 992 F.2d 967, 971 (9th

19

Cir. 1993); United States v. Merritt, 988 F.2d 1298, 1311

(2d Cir.), cert. denied, 113 S. Ct. 2933 (1993); United

States v. Jackson, 921 F.2d at 991; United States v.

Kikumura, 918 F.2d at 1113; see also United States v.

Lee, 989 F.2d 180, 183-184 (5th Cir. 1993) (per curiam).

To the extent that there is some disagreement among

the courts of appeals over whether a district court is re-

quired to justify an upward departure based on a defen-

dant’s offense-related conduct by analogy to other guide-

lines, the Commission is available to clarify matters.

See Braxton v. United States, 111 S. Ct. 1854, 1858

(1991). In any event, this case does not present a suitable

vehicle to address that issue. Here, the district court’s

upward departure was based primarily on the effect of pe-

titioner’s crimes on the victims. Pet. App. 10a. As the

Second Circuit explained in United States v. Pergola,

930 F.2d 216, 220 (1991), “the requirement of a specific

step-by-step calculation and comparison [to other

guidelines] is not particularly apt where * * * (a) harm

to the victim is at issue, and (b) the type of harm at issue

is psychological rather than physical, making ob-

servation difficult and quantification nearly impossible.”

Moreover, this Court noted in Williams v. United

States, supra, that “[t]he development of the guideline

sentencing regime has not changed our view that, except

to the extent specifically directed by statute, ‘it is not

the role of an appellate court to substitute its judgment

for that of the sentencing court as to the appropriateness

of a particular sentence.’” 112 S. Ct. at 1121 (quoting

Solem v. Helm, 463 U.S. 277, 290 n.16 (1983)). Accord-

ingly, further review of petitioner’s claim is not war-

ranted.

6. Petitioner also contends (Pet. 29) that the court of

appeals’ decision affirming the district court’s sentence

conflicts with United States v. Niven, 952 F.2d 289 (9th

20

Cir. 1991) (per curiam). That contention is without

merit.

In Niven, the district court included losses involved in

pre-Guidelines fraud counts as relevant conduct under

Guidelines § 1B1.8 in its calculation of the total loss un-

der § 2F 1.1 for purposes of determining the defendant’s

sentencing range on fraud counts to which the Sentenc-

ing Guidelines applied. The district court then sen-

tenced the defendant in Niven to five years’ imprison-

ment on the pre-Guidelines counts, to run consecutively

to a 51-month sentence on the Guidelines counts. 952

F.2d at 293. The Ninth Circuit concluded that the

“fiJnclusion of the pre-Guidelines portion of the total loss

when determining both the pre-Guidelines and Guide-

lines sentences potentially violates the Double Jeopardy

Clause, which ‘protects against multiple punishments

for the same offense.” Jd. at 293-294 (citation omitted).

It therefore remanded for resentencing with directions

to the district court “to calculate the Guidelines sen-

tence solely with reference to losses not considered in

imposing the pre-Guidelines sentence.” Jd. at 294. The

Ninth Circuit further explained: “Alternatively, the

[district] court may aggregate the amount of losses in

calculating the offense level for the Guidelines sentence,

so long as it imposes concurrent sentences for the pre-

Guidelines and Guidelines offenses.” Jbid. (emphasis

added). See also United States v. Scarano, 975 F.2d 580,

586 (9th Cir. 1992).

Like the district court in Niven, the district court in

this case included the losses involved in the pre-

Guidelines fraud counts as relevant conduct under

Guidelines § 1B1.3 in its calculation of the total loss

under § 2F1.1 for purposes of determining petitioner’s

sentencing range on the fraud counts to which the

Sentencing Guidelines applied. Unlike the district court

21

in Niven, however, the district court in this case

imposed concurrent sentences on the pre-Guidelines

counts and the Guidelines counts. Accordingly, the

district court’s sentence is fully consistent with the

Ninth Circuit’s decision in Niven.®

7. Finally, petitioner criticizes (Pet. 30) the court of

appeals for issuing an unpublished opinion that fails to

address most of the “main” points he raised on appeal.

That criticism supplies no basis for reviewing, much less

reversing, the judgment below. The right to appeal pro-

vided a defendant under 28 U.S.C. 1291 entitles him to an

independent review of the district court’s judgment by

the court of appeals. Petitioner received precisely that.

The right to an appeal does not also encompass the right

* Notwithstanding Niven, petitioner suggests (Pet. 29) that in-

clusion of the pre-Guidelines portion of the total loss in the calcula-

tion of the sentence for the Guidelines counts violates the Double

Jeopardy Clause, even if concurrent sentences are imposed. That

issue, however, is of no continuing importance, as it arises only in a

rapidly diminishing number of cases involving simultaneous fraud

prosecutions for criminal conduct that both precedes and follows

the November 1, 1987, effective date of the Sentencing Guidelines.

This Court recently declined to consider a challenge under the

Double Jeopardy Clause to the use of the same type of pre-

Guidelines conduct in imposing both a Guidelines and-a_ pre-

Guidelines sentence, see Boyenga v. United States, cert. denied,

No. 93-6621 (Feb. 28, 1994), and there is no reason for a different

disposition in this case.

There is likewise no merit in petitioner’s passing suggestion

(Pet. 29) that his sentence violated the Ex Post Facto Clause. The

application of Guidelines § 1B1.3 to include the pre-Guidelines por-

tion of the total loss in the determination of the Guidelines

sentencing range affects petitioner’s sentence only on the

Guidelines counts; it does not retrospectively increase the

punishment for any offense after that offense is committed. See

Collins v. Youngblood, 497 U.S. 37 (1990).

22

to an opinion treating each of the defendant’s claims sep-

arately and in detail. “The fact that a disposition is by

informal summary order rather than by formal published

opinion in\no way indicates that less than adequate con-

sideration has been given to the claims raised in the ap-

peal.” Furman v. United States, 720 F.2d 263, 265 (2d

Cir. 1983) (per curiam). See also Taylor v. McKeithen,

407 U.S. 191, 194 n.4 (1972) (per curiam) (courts of

appeals “have wide latitude in their decisions of whether

or how to write opinions”); United States v. Baynes, 548

F.2d 481 (3d Cir. 1977) (per curiam); NLARB vy.

Amalgamated Clothing Workers, 430 F.2d 966, 971 (5th

Cir. 1970); Fed. R. App. P. 36.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREW'S. DAYS, III

Solicitor General

JOANN HARRIS

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

APRIL 1994