U.S. v. Anderson

Citation85 F.Supp.2d 1084
Decision Date06 October 1999
Docket NumberNo. 98-20030-01-JWL.,No. 98-20030-03-JWL.,No. 98-20030-04-JWL.,98-20030-01-JWL.,98-20030-03-JWL.,98-20030-04-JWL.
PartiesUNITED STATES of America, Plaintiff, v. Dan ANDERSON (01), Robert C. LaHue (03), Ronald H. LaHue (04), Defendants.
CourtU.S. District Court — District of Kansas

Keith E. Drill, Ronald D. Lee, Jacqueline A. Cook, James R. Wyrsch, David A. Kelly, Wyrsch Hobbs Mirakian & Lee, P.C., Kansas City, MO, for Dan Anderson, defendant.

Robert J. Campbell, James E. Kelley, Jr, Lewis, Rice & Fingersh, L.C., Kansas City, MO, for Ronald Keel, defendant.

Bruce C. Houdek, Kansas City, MO, Robert C LaHue, Stillwell, KS, for Robert C. LaHue, defendant.

Anne M. Brafford, Bryan Cave LLP, Kansas City, MO, James L. Eisenbrandt, Jeffrey D. Morris, Bryan Cave LLP, Overland Park, KS, for Ronald H. Lahue, defendant.

Thomas E. Carew, Morrison & Hecker L.L.P., Kansas City, MO, Gerald A. Feffer, Williams & Connolly, Washington, DC, for Ruth Lehr, defendant.

Charles W. German, Scott M. Brinkman, Rouse, Hendricks, German, May & Shank Kansas City, MO, for Dennis McClatchey, defendant.

Michael D. Strohbehn, Walters, Bender & Strohbehn, Kansas City, MO, R. Stan Mortenson, Barry J. Pollack, Jody M. Kris, Miller, Cassidy, Larroca & Lewis, Washington, DC, for Mark Thompson, defendant.

Tanya J. Treadway, Office of United States Attorney, Topeka, William Bowne, U.S. Department of Justice, Washington, DC, for U.S.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

On April 5, 1999, following a nine week trial, a jury convicted the three defendants remaining in this case of various Medicare kickback offenses.1 On August 16, 1999, the court held a status conference to discuss objections by the parties to the sentencing recommendations set forth in the Presentence Investigation Reports (PSIRs). As a result, the court ordered the parties to brief the issues raised in their objections (doc. 461). These papers are now before the court. In its brief, the government objects to the PSIRs' failure to recommend "vulnerable victim" enhancements and "role in the offense" enhancements to the defendants' sentences. The government also objects to the application of a "special skills" enhancement to the defendants' sentences. Further, the government asks the court to order each defendant to make restitution. In their briefs, each of the defendants objects to the following: the version of the offense stated in the PSIRs, the "use of special skills" or "abuse of trust" enhancement to their sentences, and the method used by the PSIRs to calculate the amount of the bribes made by the LaHues and paid by Baptist Medical Center (Baptist) at the discretion of Mr. Anderson. Mr. Anderson and Ronald LaHue also seek a "mitigating role" reduction in their sentences. Further, Robert LaHue objects to the PSIR recommendation that an "obstruction of justice" increase be added to his sentence. Finally, Ronald LaHue requests that the court not impose a fine upon him.2 The court is well aware of the facts in this case, having presided over the nine week trial, and is now prepared to rule.

For the reasons set forth below, the court overrules the government's objection as to the "vulnerable victim" enhancements. The court sustains the government's objection as to the "role in the offense" enhancements for Robert LaHue and Mr. Anderson, but overrules the objection as to Ronald LaHue. The court sustains the parties' objections as to the "use of special skills" enhancements. The court sustains the defendants' objections as to the version of the offense and as to the "abuse of trust" enhancements. The court overrules Mr. Anderson's and Ronald LaHue's objections as to the "mitigating role" reduction. The court sustains in part, overrules in part, and defers deciding in part the defendants' objections to the calculation of the amount of the bribes. Finally, the court defers deciding the government's objection as to restitution, Robert LaHue's objection as to "obstruction of justice," and Ronald LaHue's objection as to the imposition of a fine.

I. Background3

Defendants Drs. Robert and Ronald LaHue are osteopathic physicians and were the longtime principals of a now-defunct organization called Blue Valley Medical Group ("BVMG"). BVMG was wholly owned by Robert LaHue, and Ronald LaHue was at all times a key employee. The LaHues built their practice by treating patients in nursing homes, rather than operating out of a clinic. Defendant Dan Anderson was the President and Chief Executive Officer of Baptist. As discussed in the court's July 21, 1999 order, evidence presented at trial showed that the LaHues entered into agreements with a number of hospitals, including Baptist, under which the LaHues would refer patients to a particular hospital in exchange for various forms of compensation by the hospitals. This evidence was enough to convince the jury that the defendants committed conspiracy pursuant to 18 U.S.C. § 371 and violations of the Medicare Anti-Kickback Act pursuant to 42 U.S.C. § 1320a-7b(b). The court is left with the task of sentencing the defendants in accordance with the United States Sentencing Guidelines (U.S.S.G.).

II. Vulnerable Victim Enhancement

The government's first objection is that the PSIRs do not recommend a two-level "vulnerable victim" enhancement to the defendants' sentences. The crux of the government's argument is that the elderly patients treated and referred by the LaHues were "vulnerable victims."4 U.S.S.G. § 3A1.1(b)(1) requires a two level enhancement "[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim." Pursuant to sentencing commission commentary, a "vulnerable victim" is "a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct) and (B) is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct." U.S.S.G. § 3A1.1 cmt. 2. The defendants do not dispute that the elderly patients of BVMG who were the subject of the referral scheme were "vulnerable,"5 rather, the key question is whether the elderly patients of BVMG were "victims." Because the government has presented no evidence that the patients suffered any actual or intended harm or loss, the court determines that they were not "victims" and overrules the government's objection.

Although the Tenth Circuit has not specifically defined "victim" in this context, the case law almost uniformly suggests that a "victim" can only be a person who suffers actual or intended harm or loss. See United States v. Whitlow, No. 96-3246, 1997 WL 546003, 1997 U.S.App. LEXIS 23531, at *8-9 (10th Cir. Sept. 5, 1997) (defendant called elderly people, told them that he was their grandson, and requested money); United States v. Gill, 99 F.3d 484, 485 (1st Cir.1996) (defendant treated mental health patients after falsely telling them that he was a licensed psychologist); United States v. Bachynsky, 949 F.2d 722, 736 (5th Cir.1991) (defendant falsified patient diagnoses and provided bogus treatments in order to receive enhanced payments from medical insurers and Department of Defense); United States v. Echevarria, 33 F.3d 175, 180 (2d Cir.1994) (defendant "directly targeted those seeking medical attention by posing as a physician, exploiting their impaired condition and luring them to his inadequate and dangerous medical attention for the purposes of defrauding third-party medical insurers"); United States v. Borst, 62 F.3d 43, 48 (2d Cir.1995) (defendant's criminal activity of defrauding banks in connection with brokering of loans for financially destitute borrowers was subject to enhancement because defendant's criminal conduct caused specific financial and other loss to the destitute borrowers); United States v. Wright, 160 F.3d 905, 909 (2d Cir.1998) (residents of mentally retarded care facility were vulnerable victims where embezzlement of monies of care facility deprived residents of any semblance of adequate care); United States v. Burgos, 137 F.3d 841, 844 (5th Cir.1998) (patients of psychiatrist who committed billing fraud were vulnerable victims because they suffered harm; they were often needlessly admitted to the hospital and their stays were extended due to efforts to exhaust their insurance benefits); United States v. Yount, 960 F.2d 955, 956 (11th Cir.1992) (institutionalized elderly were vulnerable victims where defendant bank employee embezzled funds from their accounts even though bank ultimately reimbursed the accounts; defendant intended to embezzle money from trust accounts of elderly and had he not gotten caught the account holders would have lost their money).

The government argues that if a person is used as an instrumentality of the defendant's crime, then that person is a "victim," regardless of not having suffered harm or loss. All but one of the cases that the government cites, however, involve victims who have suffered actual or intended harm or loss. Furthermore, the court declines to follow United States v. Stewart, 33 F.3d 764 (7th Cir.1994), the one case holding that "victims" need not have suffered a concrete loss. The Stewart court held that the district court committed clear error in refusing to enhance for vulnerable victims where the defendant's scheme was to defraud funeral homes by inducing them to sell burial expense annuity arrangements to elderly customers. Stewart, 33 F.3d at 770. The funeral homes forwarded the defendant cash paid by elderly customers to purchase annuities, but the defendant embezzled the cash. See id. at 771. Although the funeral homes ultimately performed all the services that the elderly paid for, such that the elderly lost nothing, the court determined that the elderly were "vulnerable...

To continue reading

Request your trial
13 cases
  • U.S. v. Serawop
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 25 Octubre 2007
    ...the offense of conviction, as such an award would be inconsistent with congressional intent.") (emphasis added); United States v. Anderson, 85 F.Supp.2d 1084, 1101 (D.Kan.1999) ("[A] restitution order cannot be based on the actual or intended gain to the defendant; it must be `based on the ......
  • U.S. v. Taylor
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 8 Septiembre 2009
    ...victim, they must be offset against the amount of restitution due; otherwise there would be a double recovery); United States v. Anderson, 85 F.Supp.2d 1084, 1103 (D.Kan.1999) (holding that funds recovered in a civil suit by the Federal Government against violators of the Medicare Anti-Kick......
  • U.S v. Sims
    • United States
    • U.S. District Court — District of New Mexico
    • 11 Marzo 2003
    ...U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964). See, e.g., United States v. Corey, 999 F.2d 493, 495 (10th Cir.1993); U.S. v. Anderson, 85 F.Supp.2d 1084, 1109-10 (D.Kan.1999). Courts have evaluated motions to reconsider in criminal cases under the same standards governing a motion to alter o......
  • United States v. Johns
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 17 Julio 2012
    ...of a burglar that has insurance. Id. A district court in Kansas has disagreed with our analysis in Stewart. See United States v. Anderson, 85 F.Supp.2d 1084, 1092 (D.Kan.1999). That court held that the vulnerable victim enhancement could only apply if the “victim” suffered actual or intende......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT