U.S. v. Bapack

• Decision Date: 05 December 1997
• Docket Number: No. 96-3172,96-3172
• Parties: , Medicare & Medicaid Guide P 45,902 UNITED STATES of America, Appellee, v. Pauline Ngo BAPACK, Appellant. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1320

129 F.3d 1320

327 U.S.App.D.C. 208, Medicare & Medicaid Guide P 45,902

UNITED STATES of America, Appellee, v. Pauline Ngo BAPACK, Appellant.

No. 96-3172.

United States Court of Appeals,District of Columbia Circuit.

Argued Oct 7, 1997.

Decided Dec. 5, 1997.

Appeal from the United States District Court for the District of Columbia; No. 96cr00092-01.

Evelina J. Norwinski, Assistant Federal Public Defender, Washington, DC, argued the cause for the appellant. A.J. Kramer, Federal Public Defender, was on brief.

Darryl Blane Brooks, Assistant United States Attorney, Washington, DC, argued the cause for the appellee. Mary Lou Leary, United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Virginia Cheatham, Assistant United States Attorneys, were on brief.

Before: WALD, GINSBURG and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

A jury convicted appellant Pauline Ngo Bapack of conspiring to defraud the Government (18 U.S.C. § 286), submitting false Medicare and Medicaid claims for payment (18 U.S.C. § 287), mail fraud (18 U.S.C. § 1341) and/or aiding and abetting (18 U.S.C. § 2) these offenses. She was sentenced to twenty-seven months' imprisonment and three years' supervised release and was ordered to pay $100,506.00 in restitution, reduced by approximately $38,000 based on the amount recovered in civil forfeiture proceedings. She now appeals her sentence, claiming that it was improperly enhanced under sections 2F1.1(b)(2)(A) (more than minimal planning) and 3B1.1(c) (aggravating role) of the United States Sentencing Guidelines (Guidelines) and that she was erroneously ordered to pay restitution without regard to her ability to pay. ¹ We affirm.

I. BACKGROUND

Bapack was the co-owner of Urgent Home Health Care Services, Inc. (Corporation), which provided nursing care to Medicaid and Medicare patients in their homes. She was responsible for billing Medicaid for the services the Corporation provided. Because Medicaid and Medicare pay only for services actually rendered, a home health care agency like the Corporation simply cannot bill for the services prescribed in the patient's Plan of Care (Plan). Instead the provider can bill Medicaid and Medicare only for the number and kinds of treatment visits in fact made, which, for a variety of reasons, may differ from those prescribed in the patient's Plan. Thus, the provider typically generates billing invoices by reference to attending nurses' time sheets, treatment notes and other records.

The Corporation, however, did not do this. Instead, at Bapack's (and co-defendant Pierre Yopa's) direction, it billed Medicaid and Medicare for the number and type of visits prescribed in the patient's Plan. As a result, it remitted numerous invoices for services it did not perform; the evidence presented at trial established that the Corporation, under the superintendence of Bapack and Yopa, billed Medicaid and Medicare for more than 1,400 nurse visits that could not be substantiated, the value of which totaled approximately $100,506.00.

On a tip from a former Corporation employee, the Inspector General's Office of the United States Department of Health and Human Services learned of the billing practices and raided the Corporation's offices in November 1995. After reviewing the records seized, and after subpoenaing several Corporation nurses to testify, the grand jury returned an eighteen-count indictment against Bapack and her codefendant, Pierre Yopa. Yopa was the other co-owner of the Corporation and he was responsible for Medicare billing.

The Government's evidence included the testimony of Diane Bouchaud, a nurse who had been a case manager for the Corporation. Bouchaud testified that Bapack directed her and other nurses to falsify records of nursing visits that were not made. See 9/10/96 Trial Tr. 325, 333-36, 338. Zuliatu Sillah, another nurse who served as the Corporation's Acting Director of Nursing, testified that Bapack had instructed her and others to fabricate records of nursing visits to assist in meeting a survey administered by the District of Columbia Department of Consumer and Regulatory Affairs (DCRA). Id. at 412-13, 418-19, 436-38. The Corporation was required to meet DCRA requirements, including complying with the surveys, to be a certified Medicare provider.

On September 16, 1996, the jury returned a general verdict, finding both Bapack and Yopa guilty on all counts. The district court sentenced Bapack on December 9, 1996. Concluding that her offenses involved "more than minimal planning," it enhanced her sentence by two levels pursuant to section 2F1.1(b)(2)(A) of the Guidelines. 12/9/96 Sentencing Tr. 20. The court also found that, under section 3B1.1(c) of the Guidelines, an additional two-level enhancement was appropriate for Bapack's role as an "organizer, leader, manager, or supervisor":

Well, [appellant] clearly was, at the very least, a manager or supervisor. There was at least more than one participant other than Ms. Bapack herself. The testimony is that she was, in fact, a manager of the enterprise that was found guilty of defrauding Medicare.

Id. at 18. The presentence investigation report (Report), which the district court adopted in the Judgment in a Criminal Case (Judgment), also recited that "[f]ormer employees testified that Ms. Ngo Bapack, [sic] asked some of the staff members to create nursing records so that the patient's file would falsely reflect that nurses had followed the doctors' orders and reflect that the nurse visits had been consistent with the 'Plans of Care.' " 11/20/96 Report p 11.

Finally, the district court ordered Bapack to pay restitution:

You shall pay a total restitution in the amount of $100,506.... The Court finds you do not possess the ability to pay a fine, the cost of imprisonment, or supervision unless otherwise determined by the Bureau of Prisons. In view of your financial status and your need to secure employment upon release to begin paying your restitution payments, an alternative sanction is not recommended.... Finally, I want to note for the record that there is a companion civil case that's running alongside this case. It's a forfeiture case.... And the effect of that forfeiture entered on the sentencing in this case is as follows: It doesn't affect the level of loss for purposes of the sentence. But I believe it will operate to reduce the amount of restitution that [co-defendant] and Ms. Bapack will have to make. And so the final orders will reflect a restitution amount which is the approximately hundred thousand dollars that I recited minus the approximately $38,000 that has been seized and forfeited. And also, for the record, that restitution amount will necessarily be joint and several for whatever effect that has if Mr. Yopa is ever apprehended and returned and sentenced.

12/9/96 Sentencing Tr. 22, 24 (reporter's indenting and paragraph structure omitted). The Report noted "[b]ased on her current financial status, it does not appear that [appellant] has the ability to pay a fine, the costs of incarceration and/or supervision, in addition to her restitution obligation, if ordered by the court." 11/20/96 Report p 57. It also noted that "the Government reported that when the seizure warrant was executed on March 4, 1996, the defendant had a [bank] balance of $102,645.17." ² Id. The district court then ordered Bapack to pay restitution in the amount of $62,294.50. ³ Bapack contested neither the restitution order nor the enhancement for more than minimal planning. She did argue, however, that there was insufficient evidence to support the aggravating role enhancement. 12/9/96 Sentencing Tr. 12-13. Bapack timely appealed and we now affirm.

II. DISCUSSION

A. Aggravating Role Enhancement

Bapack first contends that because there was no evidence to establish her role as a supervisor or manager of another participant in the crimes with which she was charged, the district court erred in enhancing her sentence pursuant to section 3B1.1(c) of the Guidelines. We review the sentencing court's finding for clear error. ⁴ See United States v. Baylor, 97 F.3d 542, 548 (D.C.Cir.1996); United States v. Kelley, 36 F.3d 1118, 1128 (D.C.Cir.1994) ("[W]e give due deference to the district court's application of the sentencing guidelines to the facts, and we accept the district court's findings of fact unless they are clearly erroneous.").

At sentencing, it is the Government's burden to demonstrate by a fair preponderance of the evidence that an enhancement is warranted. See United States v. Cruz, 120 F.3d 1, 2 (1st Cir.1997) (en banc). Thus, to support an aggravating role enhancement, the Government must show that more likely than not the defendant organized, led, managed or supervised the crime. See United States Sentencing Commission, Guidelines Manual, § 3B1.1 application note 2 [hereinafter Guidelines Manual ]. ⁵ The Guidelines direct the sentencing judge to consider several factors, including

the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning and organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

Id. application note 4; accord United States v. Thomas, 114 F.3d 228, 261 (D.C.Cir.1997) ("The Sentencing Guidelines instruct the sentencing court to consider the numerous factors listed above, no one of which is determinative.") (emphasis added), cert.denied, --- U.S. ----, 118 S.Ct. 635, --- L.Ed.2d ---- (1997).

Mere "control over a scheme rather than over a participant in a scheme," however, does not warrant a sentencing adjustment pursuant to section 3B1.1(c). ⁶ United States v. Gort-DiDonato, 109 F.3d 318, 322 (6th Cir.1...