US v. Skodnek

• Decision Date: 12 June 1996
• Docket Number: Cr. No. 94-10155-NG.
• Citation: 933 F. Supp. 1108
• Parties: UNITED STATES of America v. Richard P. SKODNEK, Defendant.
• Court: U.S. District Court — District of Massachusetts

933 F. Supp. 1108

UNITED STATES of America v. Richard P. SKODNEK, Defendant.

Cr. No. 94-10155-NG.

United States District Court, D. Massachusetts.

June 12, 1996.

John F. Palmer, Law Office of John F. Palmer, P.C., Boston, MA, James P. Brady, Jeffrey Denner, Cuddy Bixby, Boston, MA, Theodore A. Barone, Perkins, Smith & Cohen, Boston, MA, for Defendant Richard P. Skodnek, M.D.

Michael K. Loucks, U.S. Attys. Office, Boston, MA, for U.S.

MEMORANDUM AND ORDER

GERTNER, District Judge:

I. INTRODUCTION

The defendant, Dr. Richard Skodnek, was charged with making false claims to the Medicare program, mail fraud, obstruction of justice and witness intimidation. See 42 U.S.C. § 1320a-7b, 18 U.S.C. §§ 1341, 1503 and 1512. The superseding indictment returned against him alleged essentially that Skodnek, a psychiatrist, engaged in various schemes to defraud insurance providers and the Medicare program by requesting payment for professional services he did not actually provide.¹ As charged, the period of Skodnek's criminal conduct began on or about August 31, 1992 and extended to March 31, 1994; the amount of wrongful billing during that time totalled $157,460.

On August 2, 1995, after a trial of 15 days, the defendant was convicted on all counts contained in the superseding indictment.

Sentencing took place over two days.

The government sought a sentence of 80 months. The government's position was based on the following: 1) a total offense level of 25, driven by the government's suggested loss figure of $1,218,454.50 million, up from the $157,460 which was the subject of the superseding indictment; 2) a number of offense-related adjustments; 3) a request for an upward departure; 4) supervised release of three years; 5) special assessments totalling $6,800; 6) an order of restitution totalling $652,125.39; and 7) a substantial fine. The defendant disagreed with the government's loss calculation and the offense related adjustments; he also pressed for a downward departure.

Both the government and the defendant vigorously argued for their respective positions. Adding to the voluminous trial record, the defendant presented materials by way of affidavit and brief. The defendant was given an opportunity to present testimony and did so.

My sentencing decision was based on the evidence presented during the trial as well as the evidence, including the exhibits and affidavits, submitted during the sentencing hearings.

A few preliminary thoughts: Prior to the Federal Sentencing Guidelines, a judge could have taken the position that eighty months is a substantial sentence for a defendant like Dr. Skodnek. He is, after all, a first offender, much of whose life had been spent caring for patients as a psychiatrist. He is charged with a non-violent crime. In days past, this Court would have been able to focus solely on Skodnek as an individual offender. This judge could have decided that for this defendant, whose career as a psychiatrist had been ruined, walking into a penal institution for the first time, hearing the doors clank shut behind him, would be devastating, and further, that it did not take nearly seven years of taxpayers' money to effect his rehabilitation or to deter others from the sort of misconduct of which Skodnek was convicted.

However, these are not pre-Guidelines days.² As others have noted, the Sentencing Guidelines have changed sentencing in fundamental ways. The methodology required of courts has changed, compelling judges to examine their sentencing decisions in greater and greater detail, requiring more documentation, and exposing the results to more rigorous appellate review.

The project itself has been transformed. In order to homogenize sentencing, courts are obliged to apply rigid categories to what is or should be an individualized decision, rather than to exercise broad discretion and judgment.³ Indeed, treatment of crimes within each category has changed: White collar crime, in particular, is treated more seriously than ever before, with the amount of monetary loss to the victim largely driving the determination of the defendant's sentence. The more substantial the loss, the greater likelihood of a substantial sentence.

Even the goals have shifted. While the statute setting forth the duties of the Federal Sentencing Commission and enabling the creation of the Guidelines still acknowledges rehabilitation as a goal, that purpose itself may not dictate an individual sentencing decision.⁴ Under the Guidelines, a sentencing judge may not titrate a sentence to fit an individual. A judge may not ask how much time is really necessary to effect the goals of sentencing; he or she may not consider what kinds of societal resources really need to be brought to bear to stop this individual and others like him. While in limited circumstances, a court may depart from the Guidelines' categories, at the end of the day, for an individual defendant, the result at sentencing is largely pre-ordained by the Guidelines' rigid framework.

It is within this framework that I am obliged to view defendant Skodnek and his crimes.

II. LOSS CALCULATIONS

A. Framework

1. Relevant Conduct

In cases involving fraud, the Guidelines direct courts to determine the monetary loss caused to the victim by the defendant's criminal conduct, under a theory that the amount of loss generally serves as an appropriate proxy for the gravity of a defendant's offense, see U.S.S.G. § 2F1.1(a); United States v. Rostoff, 53 F.3d 398, 405 (1st Cir.1995). Determination of the appropriate loss amount, therefore, plays a critical role in deciding the severity of a defendant's sentence.

In the instant case, the government urges me to consider evidence of misconduct resulting in losses greatly in excess of the amount with which the defendant was charged and of which he was convicted.

It is beyond dispute that the Guidelines generally oblige me to consider uncharged but relevant conduct, and the losses resulting from such conduct, in making my sentencing determination. See U.S.S.G. § 1B1.3 (defining relevant conduct); U.S.S.G. § 2F1.1 (calculation of loss);⁵ see also Rostoff, 53 F.3d at 406; United States v. Bennett, 37 F.3d 687, 694 (1st Cir.1994).

It is also beyond dispute that care should be exercised when using such evidence. I must determine that the evidence offered is reliable and proved, at minimum, by a preponderance of the evidence.⁶ The reason for these precautions is clear: While it was commonplace to consider such evidence pre-Guidelines, the power and effect of loss evidence not presented at trial have been magnified under the Guidelines. In the past, a prosecutor might call for harsher sentencing by suggesting generally that the defendant's trial conduct was but the "tip of the iceberg." That sort of argument may have made a difference on the margins of a defendant's sentence. Now, a prosecutor may dramatically alter a defendant's term simply by proving, more probably than not, that a particular loss figure was involved.

In so doing, prosecutors may wrest considerable discretion from the trial court. For, even in making charging decisions, prosecutors may decide what claims to expose to the most strenuous trial standard, beyond a reasonable doubt, and what claims to expose to the most minimal standard, more probable than not, what allegations to test by the standards required by the Bill of Rights, and what allegations to expose to less searching review.

Unmonitored, the process of determining loss for sentencing purposes by projecting probable loss from identified loss could lead to an inappropriate result: the sentencing "tail" could easily end up wagging the trial "dog."⁷ Convicted beyond a reasonable doubt of an offense involving a small amount of loss to a victim, a defendant may be at risk of being sentenced for a substantially larger amount, and this time based only on a reasonable estimate, no matter what the good faith assumptions are and no matter how well tutored.

Consider this case. The superseding indictment charged Skodnek with misconduct resulting in a loss of $157,460. The government now asks me to sentence defendant Skodnek based on a loss figure of $1,218,454.50. The government explains that the loss projections are based on a number of factors. First, the government points to the testimony of additional witnesses, not presented at trial, whose interviews apparently prove greater losses from fraud than was contemplated in the superseding indictment. Second, it arrives at this figure by "extrapolating" from the universe of known losses (either proved at trial, or based on actual witnesses and records obtained post-trial), to a figure which the government today contends is the "real" loss figure.

Given the stakes involved, and mindful that defendants should be given an adequate and full "opportunity to present relevant information" at sentencing, U.S.S.G. § 6A1.3(a); United States v. Regan, 989 F.2d 44, 45 (1st Cir.1993), I have taken a number of steps to arrive at the loss amount. See United States v. Martinez, 83 F.3d 488, 494 (1st Cir.1996).⁸ First, I ensured that the defendant had full notice of the government's position, not only as to ultimate conclusions, but also as to methodology and underlying data.⁹ Second, I allowed extensive briefing and testimony with respect to the loss figures proposed by the government, particularly as to the loss amounts arrived at through extrapolation.

I tested the information to ensure its reliability. See United States v. Sklar, 920 F.2d 107, 113-114 (1st Cir.1990). For although the Guidelines indicate that my finding of loss need not be based on uncontested facts or determined with detailed accuracy,¹⁰ they do oblige me to test the information so that I am satisfied that the evidence has "sufficient indicia of reliability to support its probable accuracy," see U.S.S.G. § 6A1.3, that is, "sufficiently dependable to be used in imposing a sentence." United States v....