U.S. v. Borrasi

• Decision Date: 04 May 2011
• Docket Number: No. 09–4088.,09–4088.
• Citation: 639 F.3d 774
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Roland BORRASI, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

639 F.3d 774

85 Fed. R. Evid. Serv. 320

UNITED STATES of America, Plaintiff–Appellee,

v.Roland BORRASI, Defendant–Appellant.

No. 09–4088.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 22, 2010.Decided May 4, 2011.

Christopher Grohman (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.Edward M. Genson, Attorney, Genson & Gillespie, Marc W. Martin (argued), Attorney, Marc Martin, Ltd., Chicago, IL, for Defendant–Appellant.Before KANNE, TINDER, and HAMILTON, Circuit Judges.KANNE, Circuit Judge.

Roland Borrasi, a medical doctor, was convicted of Medicare fraud after he accepted a salary from a hospital in exchange for continually referring patients to the facility, a violation of 42 U.S.C. § 1320a–7b. In this appeal, Borrasi attacks both his conviction and his sentence. We find that the district court did not err by admitting minutes from hospital committee meetings to prove attendance records while excluding discussion of reports to which the minutes refer, as the latter constituted inadmissible hearsay. Because the Medicare fraud statute criminalizes payments when induction of referrals is among the purposes for the payments, we also find that the district court did not err in instructing the jury. Accordingly, we affirm his conviction. In addition, we find that the district court did not err in sentencing Borrasi. It reasonably estimated the loss amount in determining his offense level, it properly assessed a leadership enhancement to his offense level, and it expressed adequate reasons to sentence Borrasi to a longer term than his co-defendant. Accordingly, we affirm his sentence as well.

I. Background

Dr. Borrasi owned Integrated Health Centers, S.C. (“Integrated”), a corporate group of healthcare providers in Romeoville, Illinois. He worked primarily at nursing homes and hospitals. Through this work, he became acquainted with Chief Executive Officer Wendy Mamoon, Director of Operations Mahmood Baig, and other officers and directors of Rock Creek Center, L.P., a licensed inpatient psychiatric hospital in Lemont, Illinois. Reimbursements from the Medicare federal health care program constituted the vast majority of payments received by Rock Creek.

At some time between 1999 and 2002, Borrasi, Mamoon, Baig, and others conspired to pay bribes to Borrasi and other individuals at Integrated in exchange for an increasing stream of Medicare patient referrals. Doctors Zafer Jawich, Bruce Roper, and Abhin Singla, as well as psychologist Agnes Jonas, were among those employed at Integrated at that time. Over that period, a sum of $647,204 in potential bribes was paid to Borrasi and Integrated physicians by Rock Creek. In 2001 alone, Borrasi referred approximately 484 Medicare patients to Rock Creek.

In order to conceal these bribes, Borrasi and other Integrated employees were placed on the Rock Creek payroll, given false titles and faux job descriptions, and asked to submit false time sheets. Borrasi, for example, was named “Service Medical Director” and was allegedly required to be available at all times; Baig later testified that Borrasi was not expected to perform any of the duties listed in his job description. According to minutes of Rock Creek's various committee meetings, Borrasi and some Integrated physicians occasionally attended meetings and submitted reports of their work. But they attended only a very small percentage of the actual meetings, and multiple witnesses testified to rarely seeing them in the Rock Creek facility for meetings or other duties. Jonas, Jawich, and Roper each testified that the Integrated physicians did not perform their assigned administrative duties, their reports and time sheets notwithstanding. Baig testified that he, Borrasi, and Mamoon did not expect the Integrated physicians to perform any actual administrative duties.

In addition, Rock Creek paid the salary for Integrated's secretary, as well as lease payments for one of Integrated's offices. This arrangement purportedly gave Rock Creek an outpatient clinic at Borrasi's building and certainly supplemented Borrasi's rent. Further, Baig was paid both to oversee the admission and stays of Integrated's referrals to Rock Creek and also to ensure the referred patients were returned to nursing homes and facilities that Borrasi could access and control. These methods enabled Rock Creek and Borrasi to maximize their Medicare reimbursement claims.

In December 2006, a grand jury returned an indictment against Borrasi, Mamoon, and Baig, charging them with one count of conspiracy to defraud the United States government, in violation of 18 U.S.C. § 371, and six counts each of Medicare-related bribery, in violation of 42 U.S.C. § 1320a–7b et seq. Baig pled guilty to all seven counts, but Mamoon and Borrasi proceeded to trial. The three-week trial included testimony from Integrated and Rock Creek employees; documentary evidence comprising time sheets, attendance records from meeting minutes, and Medicare reimbursement claims; and recordings of Borrasi's conversations with Integrated physicians recorded by Singla, including one in which Borrasi admitted to referring patients in exchange for “free money” from Rock Creek. The jury returned verdicts of guilty on each count against Borrasi and Mamoon.

The district court then held a joint, two-day sentencing hearing for Borrasi and Mamoon. Both defendants were in criminal history category I. After considering the presentence report (PSR) and the parties' arguments regarding increasing the offense level to reflect the loss amount and enhancing the offense level due to their leadership roles, the court calculated Borrasi's offense level at 28 (yielding a range of 78–97 months' imprisonment) and Mamoon's offense level at 26 (yielding a range of 63–78 months' imprisonment). The district court then heard the defendants' mitigation evidence, including testimony regarding a severely debilitating accident Mamoon's son had suffered that left Mamoon as his sole caregiver. The court sentenced Borrasi to seventy-two months' imprisonment and two years' supervised release. Mamoon was sentenced to six months' imprisonment, one year of home confinement, and five years' supervised release. Each defendant was required to pay $497,204 in restitution.

Borrasi then moved the district court to reconsider his sentence, arguing that it should be significantly lower to comport with Mamoon's. After holding a hearing on the matter, the district court denied his motion, concluding that the disparate sentences were justified by the facts of the case and the individual defendants' characteristics. Borrasi then timely appealed.

II. Analysis

Borrasi challenges both his conviction and his sentence in this appeal. He first argues that two errors during the guilt phase of his trial require a new trial. He then argues that, even if his conviction stands, we must remand for resentencing because of three errors during the sentencing phase. The government argues that the decisions about which Borrasi complains were not erroneous. We will consider each of Borrasi's five issues in turn, beginning with the alleged infirmities in his conviction.

A. Challenges to Conviction

At the conclusion of his trial, Borrasi moved for a new trial or, in the alternative, a judgment of acquittal, alleging twelve separate grounds for relief that included alleged evidentiary, procedural, and instructional errors. On appeal, he wisely limits his attack on his conviction to two allegations of error. See Ehrhart v. Sec'y of Health and Human Servs., 969 F.2d 534, 537 n. 2 (7th Cir.1992) (“[I]t behooves litigants to choose with care a few select issues for review, preferably those not forfeited by waiver.”). His first allegation of error involves an evidentiary ruling, and the second focuses on the government's commentary during closing arguments regarding the statute he was charged with violating. We find neither argument persuasive.

1. Exclusion of Hearsay

Borrasi first argues that the district court erroneously interpreted and applied the Federal Rules of Evidence when it prevented him from using comments in meeting minutes during his defense, despite its earlier decision to allow the government to introduce the minutes into evidence and use them for a different purpose. According to Borrasi, this ruling prejudiced his case and warrants reversal of his conviction. We review the district court's decision to exclude the evidence or limit its use for an abuse of discretion, but we review its interpretation of the Rules de novo. United States v. Rogers, 587 F.3d 816, 819 (7th Cir.2009). Even if we determine the evidentiary decision was erroneous, we will not reverse it if the jury's ultimate decision was not influenced by the error. United States v. Oros, 578 F.3d 703, 707 (7th Cir.2009).

The meeting minutes at issue were taken during Rock Creek committee meetings. The face sheet of each set of minutes lists attendees at the meetings. The government sought to introduce them to support its expert's summary of the attendance of Borrasi and his Integrated physicians at Rock Creek meetings. This summary purported to show that they did not participate sufficiently in their assigned committees to justify receiving salaries from Rock Creek for their respective activities. The government and Borrasi stipulated to the minutes' admissibility, and Borrasi now argues that the scope of the stipulation agreement was not limited to specific contemplated uses of the evidence.

Some of the minutes contained comments about committee reports submitted to Rock Creek's board of directors. Borrasi sought to introduce the minutes as exhibits so the jury could consider the information in those referenced reports, including the descriptions of medical services he and his employees allegedly performed for Rock Creek. He believed the substantive information in the reports—partially incorporated by the...