U.S. v. Gill

• Decision Date: 29 July 1996
• Docket Number: No. 96-1203,96-1203
• Citation: 99 F.3d 484
• Parties: UNITED STATES of America, Appellee, v. Charles Henry GILL, Jr., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 484

99 F.3d 484

UNITED STATES of America, Appellee, v. Charles Henry GILL, Jr., Defendant, Appellant.

No. 96-1203.

United States Court of Appeals, First Circuit.

Heard July 29, 1996.

Decided Nov. 6, 1996.

Terry A. Fralich with whom Peter J. DeTroy, and Norman, Hanson & DeTroy, Portland, ME, were on briefs, for defendant, appellant.

Helene Kazanjian, Assistant United States Attorney, Portland, ME, with whom Jay P. McCloskey, United States Attorney, Bangor, ME, was on brief, for the United States.

Before TORRUELLA, Chief Judge, BOUDIN, Circuit Judge, and LISI, ^* District Judge.

BOUDIN, Circuit Judge.

Charles Gill appeals from his sentence, following a plea of guilty to various criminal charges, to challenge two sentencing determinations made by the district judge. One involves the issue of the vulnerable victim adjustment, U.S.S.G. § 3A1.1(b); the other, an increase for abuse of a position of trust. Id. § 3B1.3. The facts, which we briefly summarize, are drawn from the presentence report, the sentencing transcript and various other materials before the district court. United States v. Egemonye, 62 F.3d 425, 426 (1st Cir.1995).

From August 1993 until November 1994, Gill owned and operated the Maine Health Trust, doing business as The Counseling Center, in Fryberg, Maine, and provided psychological counseling services to individuals at the Counseling Center during this period. Additionally, from February 1994 to November 1994, Gill was employed part-time at the Bethel Area Health Center in Bethel, Maine, where he performed similar counseling services.

Gill told individual patients at the two facilities, and his employers at the Bethel Area Health Center, that he possessed a doctoral degree in psychology and was licensed as a psychologist or counselor under Maine law. In fact, Gill was not licensed and had never received an advanced degree in either psychology or counseling. Gill had a substantial record of offenses involving theft and passing bad checks.

During the period in question, Gill submitted claims, or caused patients and the Bethel Area Health Center to submit claims for payment to various private insurance companies and the Medicare and Medicaid programs for services that Gill provided to them. The total value of the payments claimed from these entities was over $37,000. Gill also made similar false statements as to his credentials and licensing to the insurance companies and to Medicare and Medicaid authorities. Gill received payments totalling over $16,000 directly from individual patients.

In March 1995, Gill pled guilty to one count of willfully using a passport secured by means of a false statement, 18 U.S.C. § 1542, Gill having proffered the passport when the Bethel Area Health Center requested proof of his citizenship at the start of his employment. In October 1995, Gill pled guilty to one count of mail fraud, one count of wire fraud, and one count of making false statements to the Medicare and Medicaid programs. 18 U.S.C. §§ 1341, 1343; 42 U.S.C. § 1320. All charges were consolidated for sentencing.

Following a hearing on January 30, 1996, the district court sentenced Gill to 40 months' imprisonment, three years supervised release, and a requirement of restitution in the amount of $43,481.49. The underlying calculations included a two-level increase in Gill's base offense level for victim vulnerability, U.S.S.G. § 3A1.1(b), and a two-level increase for abuse of a position of trust, id. § 3B1.3. It is these two adjustments that are the sole subjects of Gill's appeal from his sentence. Gill was sentenced under the November 1995 edition of the guidelines, and references are to that version unless otherwise specified.

The standard of review in such a case is simple, in fact deceptively so, in the standard formulation: the district court's factual findings are respected unless clearly erroneous, and the determinations of law are reviewed de novo. United States v. Sabatino, 943 F.2d 94, 102 (1st Cir.1991). In principle, the application of a legal standard to undisputed facts is also an issue of law, id., but in practice the matter is not quite so clear-cut.

Victim vulnerability. Since November 1, 1989, the provision now designated U.S.S.G. § 3A1.1(b) has remained substantially unchanged, although a recent change in the commentary is pertinent to the issue of "targeting" (discussed below). The black letter of section 3A1.1(b) states that a two-level increase in the defendant's offense level must be imposed:

[i]f the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct.

The presentence report proposed that the adjustment be applied to Gill. As amended to reflect rulings on objections, the report reasoned that Gill knew that the patients with whom he would be dealing "had psychological difficulties, mental health disorders and substance abuse problems." Accordingly, the probation officer said that Gill knew that his victims were vulnerable and "specifically targeted them because of their 'vulnerability' by [choosing] to play the part of a person who treats such people with mental health problems."

At sentencing, the district court concluded that the victims "were especially vulnerable because of their needs that gave rise to their seeking and their receiving of services." The court cited decisions in other circuits imposing such an adjustment on individuals fraudulently providing medical services. See United States v. Echevarria, 33 F.3d 175, 180-81 (2d Cir.1994) (unlicensed doctor); United States v. Bachynsky, 949 F.2d 722, 735-36 (5th Cir.1991) (physician making false diagnoses), cert. denied, 506 U.S. 850, 113 S.Ct. 150, 121 L.Ed.2d 101 (1992).

Gill disputes the district court's adjustment on several grounds. He argues that the finding of vulnerability must be based on evidence as to individuals, rather than upon mere membership in a class. He denies that the patients he victimized were especially vulnerable. Finally, he says that he did not "target" the victims on account of their vulnerability, a requirement he imputes to the guideline based on commentary language. The first two claims are related; the last we discuss separately in the next section of this opinion.

The vulnerable victim guideline is primarily concerned with the impaired capacity of the victim to detect or prevent the crime, rather than with the quantity of harm suffered by the victim. The latter aggravation is dealt with in five other provisions of the guidelines, expressly permitting upward departures where the crime resulted in death, significant physical injury, extreme psychological injury, special property damage, or the gratuitous infliction of injury or prolonging of pain or humiliation. U.S.S.G. §§ 5K2.1, .2, .3, .5, .8. As United States v. Kaye, 23 F.3d 50, 54 (2d Cir.1994), explained:

[T]he courts appear to have interpreted the phrase "susceptible to the criminal conduct" as emphasizing that a particular victim was less likely to thwart the crime, rather than more likely to suffer harm if the crime is successful.

Thus, the issue here is whether the patients at the two mental health facilities where Gill practiced were, on account of their condition, substantially less able than the average citizen to protect themselves against Gill's fraud. There is nothing in the presentence report or in the district judge's comments that suggests a misunderstanding on this point. However, we stress the focus of the guideline at the outset because one cannot measure degrees of vulnerability or susceptibility without some notion of what kind of vulnerability or susceptibility is at issue.

Even thus narrowed, our case is peculiarly difficult because Gill was dealing with a group, made up of individuals about whom we know almost nothing beyond the fact that they fall into a class of persons, namely, those who visit mental health centers for counseling and therefore are likely to have or think they have some emotional or mental problem--which may afflict the patient or a related non-patient. Gill argues that in such a case it is improper for a vulnerability finding to be based on membership in a class rather than on evidence as to a specific individual.

Appeals courts have been rather more willing to set aside determinations of vulnerability made solely on a class basis than when the focus was on the susceptibility of a specific individual. United States v. Rowe, 999 F.2d 14, 16-17 (1st Cir.1993). But, as we also said in Rowe, this is in no way a fixed rule. Id. at 17. In some cases the inference to be drawn from the class characteristics may be so powerful that there can be little doubt about unusual vulnerability of class members within the meaning of section 3A1.1.

The guideline makes clear that "class" determinations are permissible by saying in its commentary that the adjustment would apply to someone who sold an ineffective cancer cure. U.S.S.G. § 3A1.1(b), comment. n. 2. Numerous cases have upheld upward adjustments based on group determinations. See, e.g., United States v. Malone, 78 F.3d 518, 522-23 (11th Cir.1996) (cab drivers); Echevarria, 33 F.3d at 180-181 (medical patients); United States v. McDermott, 29 F.3d 404, 411 (8th Cir.1994) (black teenagers); United States v. Peters, 962 F.2d 1410, 1417-18 (9th Cir.1992) (people with poor credit histories); Bachynsky, 949 F.2d at 735 (medical patients).

In Rowe, the primary subjects of the fraud were business entities, and, without knowing more about any company, it was hard for us to see how they were "unusually" vulnerable to fraud. The more recent case of United States v. Feldman, 83 F.3d 9 (1st Cir.1996), also relied upon by Gill, is quite different. There, this court was concerned with a crime directed against only one or two specific victims. Id. at 15-16. To resort to a single, class-based...