United States v. Gozes-Wagner
| Decision Date | 28 September 2020 |
| Docket Number | No. 19-20157,19-20157 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. Daniela GOZES-WAGNER, also known as Daniela Wagner, also known as Daniela Mayer Gozes, also known as Daniela Gozes, Defendant - Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lauretta Drake Bahry, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Scott A. Keller, Baker Botts, L.L.P., Austin, TX, Andrew Thomas George, Baker Botts, L.L.P., Washington, DC, for Defendant-Appellant.
Jonathan Lee Marcus, Esq., Michael A. McIntosh, Esq., Skadden, Arps, Slate, Meagher & Flom, L.L.P., Washington, DC, for Amici Curiae National Association of Criminal Defense Lawyers, Cato Institute, American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Texas, Due Process Institute, Texas Public Policy Foundation.
Steven Jeffrey Lieberman, Kenneth Winston Starr, Lanier Law Firm, Houston, TX, Douglas Berman, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY, for Amicus Curiae Aleph Institute.
Steven Jeffrey Lieberman, Houston, TX, Douglas Berman, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY, for Amici Curiae David B. Anders, John Ashcroft, William G. Bassler, Bob Barr.
Before STEWART, DENNIS, and HAYNES, Circuit Judges.
A jury convicted Daniela Gozes-Wagner of conspiracy to commit health care fraud and conspiracy to commit money laundering. The district court sentenced her to 120 months (10 years) imprisonment on each count, with the sentences running consecutively, for a total of 240 months (20 years). The court also ordered her to pay more than $15 million in restitution.
On appeal, Gozes-Wagner argues that her sentence should be vacated because it was the result of an unconstitutional "trial penalty"—a punishment for choosing to exercise her right to stand trial instead of pleading guilty. She also argues that her sentence should be vacated because it was both procedurally and substantively unreasonable. Finally, she seeks vacatur of the restitution award on several grounds. Finding no reversible error, we affirm.
Daniela Gozes-Wagner worked as a mid-level manager for a Russian-led conglomerate that stole millions from Medicare and Medicaid. Her role in the conspiracy included, among other things: recruiting doctors to approve unnecessary medical tests, hiring "seat warmers" to sit in empty offices designated as fronts for shell companies that she helped manage to cover up the scheme, and overseeing payroll operations for "testing facilities" in the Houston area. Other members of the conspiracy relevant to this appeal include: Aliksander Beketav, Mikhail Shiforenko, Alexandr Voronov, and Boris Robert Brodsky.
In 2014, a grand jury returned a two-count indictment against Beketav, Shiforenko, Voronov, and Gozes-Wagner. All four were charged with one count of conspiracy to commit health care fraud. The Russians—but not Gozes-Wagner—also were charged with one count of conspiracy to commit money laundering. Later on, Brodsky was charged in a single-count superseding information with conspiracy to commit health care fraud. Initially, then, Gozes-Wagner and Brodsky each faced only a conspiracy to commit health care fraud charge, while Beketav, Shiforenko, and Voronov each faced both a conspiracy to commit health care fraud charge and a conspiracy to commit money laundering charge.
Slowly but surely, circumstances changed. Soon after being arrested in 2015, Beketav attempted to hang himself and became incapacitated. In July 2016, Voronov pleaded guilty without a plea agreement to a superseding information charging him with a single count of conspiracy to commit health care fraud. The conviction carried a maximum sentence of 60 months in prison. Meanwhile, Shiforenko had been cooperating with the Government. In December 2016, he agreed to plead guilty to the conspiracy to commit health care fraud charge in exchange for the Government agreeing to dismiss the conspiracy to commit money laundering charge. This meant that he now faced a statutory maximum sentence of 120 months. At this point, of the originally indicted conspirators, Gozes-Wagner was the only one who might go to trial.
In March 2017, a grand jury returned a superseding two-count indictment against Gozes-Wagner. This time, she was charged with two counts: conspiracy to commit health care fraud charge and conspiracy to commit money laundering. Shortly thereafter, the district court granted the Government's request to dismiss the charges against Beketav because of his incapacitation. And in August 2017, Brodsky pleaded guilty to the single count of conspiracy to commit health care fraud that he faced. Brodsky's conviction carried a statutory maximum sentence of 60 months.
It was then the case that none of Gozes-Wagner's co-conspirators would be sentenced to more than 120 months in prison. Gozes-Wagner, meanwhile, faced a combined statutory maximum of 360 months imprisonment: 120 months for a conviction of conspiracy to commit health fraud under 18 U.S.C. § 1347, and 240 months for a conviction of conspiracy to commit money laundering under 18 U.S.C. § 1956(a)(1). This 360-month maximum sentence was three times Shiforenko's 120-month maximum sentence and six times Voronov and Brodsky's 60-month maximum sentences.
It bears mentioning here that Judge Melissa Harmon had presided over the conspirators’ cases until this point and had taken the guilty pleas of Brodsky, Voronov, and Shiforenko. But just days before Gozes-Wagner's trial was set to begin, her case was transferred to Judge David Hittner. Trial began before Judge Hittner on September 25, 2017. It ended several days later when the jury convicted Gozes-Wagner on both counts she faced.
In July 2018, before anyone in the conspiracy had been sentenced, the conspirators’ cases were reassigned to Judge Andrew Hanen. A few months later, in October 2018, Gozes-Wagner's case was transferred back to Judge Hittner for sentencing. Shiforenko's, Voronov's, and Brodsky's cases remained before Judge Hanen. Our references to "the district court" throughout this opinion are to Judge Hittner.
Gozes-Wagner was the first conspirator to be sentenced. Her sentencing hearing was held on March 6, 2019. The table below illustrates the relative positions of the co-conspirators at the time Gozes-Wagner was sentenced.
Conspirator Role Counts Disposition of Max
charges Sentence
Beketav Leader HCF1 & ML2 Dismissed N/A
Shiforenko Chief HCF3 Plea agmt 10 yrs
assistant
Voronov Manager HCF Plea (no agmt) 5 yrs
Brodsky Manager HCF Plea agmt 5 yrs
Gozes-Wagner Manager HCF & ML Convicted by jury 30 yrs
[Editor's Note : The preceding image contains the reference for footnotes1 ,2 ,3 ].
The PSR calculated Gozes-Wagner's Guidelines range as 324 to 360 months (27 to 30 years).4 Probation recommended a sentence of 324 months, the low end of the Guidelines. Gozes-Wagner sought a significant downward variance. The Government's position was unclear. The prosecutor first requested that she be sentenced at "the low end of the guidelines." When reminded by Judge Hittner that such a sentence would amount to at least 27 years, the prosecutor said, apparently in error, that such a sentence "would be above the sentencing max." As such, he asked "for 240 months [20 years]," which he said amounted to "the sentencing max ... under the guidelines."
Gozes-Wagner emphasized that she faced a much lengthier sentence than her pleading co-conspirators. She argued that because Shiforenko faced only a 120-month maximum sentence and Voronov and Brodsky faced only 60-month maximum sentences, it would be unfair and illegal to sentence her, as she is arguably not as culpable as them, to anything close to the Guidelines range of 324 to 360 months.
The district court listened to Gozes-Wagner's arguments and then pronounced its sentence. Consistent with the Government's final request, it sentenced her to 240 total months imprisonment: 120 months on each count of conviction, to run consecutively. The 20-year sentence amounted to a 7-year downward variance from the low end of her Guidelines range. Gozes-Wagner also was ordered to pay $15,283,985 in restitution.
But it is how the court reached its sentence that is primarily at issue in this appeal. To more fully appreciate the context in which the sentencing occurred, we will begin by examining what transpired during trial. We will then closely inspect the sentencing hearing itself.
The Government presented its case-in-chief through the testimony of fourteen witnesses over three days. Its first witness was Agent William Marlowe, a task force officer with the FBI in Houston. Agent Marlowe testified that the investigation into the Beketav Group began in 2009 with "notice that patients were receiving monies in return for medical services." Suspicious findings appeared almost immediately. Although billing records described patients as being seen at specific offices, follow-up interviews with those same patients confirmed that they had in fact been seen at their houses. Then there was the "cyclical billing," where a patient would receive "a battery of diagnostic tests" one month followed by the same tests several months later. The investigative trail led agents to the Beketav Group, Agent Marlowe testified.
Agent Marlowe explained that Gozes-Wagner's initial role in the conspiracy was as "a marketer or recruiter," but her duties grew. On more than one occasion, when he visited locations believed to be operated by the group, she was the person who appeared to be in charge.
The Government then called Sandra Garcia as its second witness. She told...
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