# Opposition Brief — Jacobson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1069

## Text

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petitioner’s convictions in an unpublished opinion that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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1212%3A2. Public record. Not legal advice.