541 F.3d 838 (8th Cir. 2008), 06-3291, United States v. Boesen

Docket Nº:06-3291, 07-2217.
Citation:541 F.3d 838
Party Name:UNITED STATES of America, Appellee/Cross-Appellant, v. Peter V. BOESEN, M.D., Appellant/Cross-Appellee.
Case Date:September 08, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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541 F.3d 838 (8th Cir. 2008)

UNITED STATES of America, Appellee/Cross-Appellant,

v.

Peter V. BOESEN, M.D., Appellant/Cross-Appellee.

Nos. 06-3291, 07-2217.

United States Court of Appeals, Eighth Circuit.

September 8, 2008

Submitted: April 17, 2008.

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Mary Clare Luxa, AUSA, argued, Des Moines, IA, for appellant/cross-appellee.

Guy Richard Cook, argued, Nicholas J. Mauro, on the brief, Des Moines, IA, for appellee/cross-appellant.

Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.

BENTON, Circuit Judge.

A jury convicted Peter V. Boesen of conspiracy to commit health care fraud in violation of 18 U.S.C. § 371 and eighty-two counts of health care fraud in violation of 18 U.S.C. § 1347. The district court sentenced Dr. Boesen to 51 months' imprisonment and three years of supervised release. Dr. Boesen appeals the convictions, the sentence enhancements, and the order of restitution. The government cross-appeals the judgment of acquittal on the conspiracy count.

Jurisdiction being proper under 28 U.S.C. § 1291 and 18 U.S.C. § 3731, this court affirms in all respects except for the acquittal on the conspiracy count, and remands for proceedings consistent with this opinion.

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I.

Dr. Boesen specialized in otolaryngology, the medical and surgical treatment of the ears, nose, and throat. In 1995 he established Boesen Specialists in Otolaryngology, a clinic which billed private insurers as well as Medicare and Medicaid. Dr. Boesen's brother, James F. Boesen, Jr., served as the office manager and administrator of the clinic.

The American Medical Association classifies medical procedures and tests in the manual Current Procedural Terminology. The CPT codes are used for health insurance billing. The CPT code for nasal endoscopy with debridement is 31237, the code for cholesteatoma removal is 69150, and the code for otoacoustic emissions tests is 92588.

By 2000 the Boesen clinic was regularly billing payers for these three codes. In 2002 two private insurance companies, John Deere Healthcare, Inc., and Wellmark Blue Cross and Blue Shield of Iowa, contacted Dr. Boesen about the frequency of his billing for these codes. By December 2002 Dr. Boesen was no longer a participating provider with either insurance program. (Dr. Boesen later rejoined Wellmark Blue Cross and Blue Shield of Iowa as a participating provider on the condition that he obtain a second opinion before billing for certain procedures, including nasal endoscopy with debridement procedures.)

The government alleged that between December 2000 and December 2002 the Boesen clinic billed for 82 procedures and tests that were not actually performed or that were medically unnecessary. The government charged Dr. Boesen and his brother James with conspiracy to commit health care fraud, 51 counts of fraudulent billing for CPT 31237 procedures, 24 counts of fraudulent billing for CPT 69150 procedures, and seven counts of fraudulent billing for CPT 92588 tests. The government also sought forfeiture of $493,954.00.

A jury found both defendants guilty on all counts. The district court immediately granted James Boesen's motion for a judgment of acquittal on all counts, which this court reversed. United States v. Boesen, 491 F.3d 852 (8th Cir.2007).

The district court also granted Dr. Boesen's motion for acquittal on the conspiracy count. In the earlier appeal, this court reserved consideration of Dr. Boesen's acquittal on the conspiracy count until the district court ruled on all of Dr. Boesen's post-trial motions. Id. at 853 n. 1.

The district court eventually ruled on the remainder of Dr. Boesen's motions. The court denied the motions for a judgment of acquittal or for a new trial. The court did, however, grant Dr. Boesen's motion for a new trial on three of the CPT 69150 counts because the jury forms incorrectly identified the patient.

When determining the advisory Sentencing Guidelines range, the district court imposed a two-level enhancement under United States Sentencing Guideline (U.S.S.G.) § 3C1.1 for obstruction of justice. The court calculated that Dr. Boesen's fraud caused a loss of $931,526.86, and imposed a 14-level sentence enhancement under U.S.S.G. § 2B1.1.

II.

Dr. Boesen contends that (1) his Sixth Amendment Confrontation Clause rights were violated; (2) prosecutorial misconduct deprived him of a fair trial; (3) prejudicial statements by the district court deprived him of a fair trial; (4) the district court erred by failing to grant his motion for a judgment of acquittal on the fifty-one CPT 31237 counts; (5) the court erred in determining the loss amount; and (6) the

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district court erred by applying a two-level sentence enhancement under U.S.S.G. § 3C1.1.

A.

Dr. Boesen contends that the district court violated his Sixth Amendment right to confront witnesses by barring the admission of DVDs during his cross-examination of witnesses in the government's case-in-chief. The DVDs, which Dr. Boesen created in 2005 and 2006 after he was indicted, depicted him performing otolaryngological procedures without anesthesia on two patients named in the indictment.

The district court based its ruling on the fact that Dr. Boesen created the DVDs after he was indicted, and thus admitting the DVDs into evidence during the government's case-in-chief would allow Dr. Boesen to testify without being subject to cross-examination. Once Dr. Boesen took the witness stand in his own defense, the court admitted the DVDs.1 Dr. Boesen made no attempt to recall government witnesses for cross-examination after the DVDs were admitted.

The Sixth Amendment to the United States Constitution guarantees an accused the right “to be confronted with the witnesses against him." U.S. Const. amend. VI, § 1. “The United States Supreme Court has emphasized that ‘the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ " United States v. Wipf, 397 F.3d 677, 682 (8th Cir.2005), quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam). “We review a district court's decision to limit cross-examination for an abuse of discretion, reversing only if there has been clear abuse of discretion and a showing of prejudice to the defendant." Id. at 683.

The Federal Rules of Evidence empower district court judges to control the mode and order of examining witnesses. Fed.R.Evid. 611(b). Dr. Boesen had an opportunity to cross-examine all government witnesses. While the district court prevented Dr. Boesen from introducing his DVDs during the government's case-in-chief, the court did not prevent Dr. Boesen from introducing the DVDs during the presentation of his own case. Once the DVDs were admitted, Dr. Boesen was free to recall any witness; Dr. Boesen's failure to do so is not an error of the trial court. “A critical factor in determining whether the right to confrontation has been violated is whether defendant had other means available to obtain the same effect as the excluded inquiry." United States v. Beckman, 222 F.3d 512, 524 (8th Cir.2000).

B.

Dr. Boesen also alleges prosecutorial misconduct. In particular, Dr. Boesen claims that he was deprived of a fair trial because of (1) improper comments in Assistant United States Attorney Stephen O'Meara's closing argument and (2) federal prosecutors' possession of and reference at trial to Iowa Workforce Development records concerning Dr. Boesen's income. This court reviews a district court's denial of a motion for a new trial for an abuse of

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discretion. United States v. Garcia-Hernandez, 530 F.3d 657, 663 (8th Cir.2008) (internal citation omitted).

“To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (internal quotations and citations omitted). To determine whether misconduct has occurred, this court applies a two-part test: “first, the prosecutor's conduct or remarks must have been improper, and second, the remarks or conduct must have prejudicially affected the defendant's substantial rights by depriving the defendant of a fair trial." United States v. Eagle, 515 F.3d 794, 804 (8th Cir.2008) (internal citation omitted). “In order to determine whether the defendant was deprived of a fair trial, we consider the following three factors: (1) the cumulative effect of the misconduct; (2) the strength of the properly admitted evidence of the defendant's guilt; and (3) the curative actions, if any, taken by the district court." Id. at 804-05 (internal citation omitted).

1.

Dr. Boesen's first charge of prosecutorial misconduct concerns the final three sentences of Assistant United States Attorney O'Meara's closing argument. “Prosecutorial remarks during closing argument can be grounds for reversing a defendant's conviction if they were improper and prejudicially affected the defendant's substantial rights so as to deprive her of a fair trial." United States v. Boone, 437 F.3d 829, 841 (8th Cir.2006) (internal citation omitted), cert. denied, __ U.S. __, 127 S.Ct. 172, 166 L.Ed.2d 123 (2006). In his...

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