USA v. Vivit, 99-3773

• Decision Date: 06 June 2000
• Docket Number: No. 99-3773,99-3773
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Salvador A. Vivit, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 908

214 F.3d 908 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Salvador A. Vivit, Defendant-Appellant.

No. 99-3773

In the United States Court of Appeals For the Seventh Circuit

Argued April 10, 2000

Decided June 6, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 157 01--James B. Zagel, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Easterbrook, Kanne and Rovner, Circuit Judges.

Kanne, Circuit Judge.

A jury found Salvador Vivit, a medical doctor, guilty of sixteen counts of mail fraud based on a scheme in which he and his patients submitted false claims to insurance companies that grossly overstated the amount of care he had provided. The district court sentenced Vivit to seventy-two months imprisonment for these offenses. On appeal, Vivit does not contest the convictions, but he claims that the district court committed numerous errors in determining the appropriate sentence. Finding no errors in Vivit's sentence, we affirm the decision of the district court.

I. History

Salvador Vivit operated the Family Medical Center, a one-doctor clinic located in Elmwood Park, Illinois. At the Family Medical Center, Vivit employed only two other individuals, Estrella Del Moral, who worked as a receptionist, did filing and sometimes provided physical therapy to Vivit's patients, and Adriano "Andy" Apostol, his partner, who processed and filed insurance claims for Vivit.

Vivit and Apostol had founded the clinic together in 1993, with Apostol providing about $7,000 in start-up money and equipment. However, because Vivit was the only licensed doctor, he ran the clinic as a sole practitioner. Vivit recruited patients and performed medical treatment, while Apostol processed and filed insurance claims for him and used the office as a base for other shady business ventures. In September 1994, Vivit and Apostol had a disagreement. Apostol then quit and removed many items from the clinic, including the clinic's computer, a television, a chair and 134 boxes of patient files documenting the clinic's accident victims. These patient files were given by Apostol to the Elmwood Park Police department, who investigated and eventually arrested Vivit. Shortly after removing this equipment from the clinic, Apostol departed for the Philippines, where he remains.

Between 1993 and 1996, Vivit involved as many as 130 patients in a complicated scheme to defraud insurance companies by charging for services that he did not provide. Vivit engaged in five principal types of fraudulent conduct: (1) billing insurers for patient visits that did not occur; (2) billing for physical therapy that was not performed; (3) creating false medical records and reports to submit to insurance companies; (4) allowing his unlicensed assistant, Del Moral, to perform physical therapy without Vivit's supervision while he charged for therapy performed by a licensed therapist; (5) ordering unnecessary allergy tests for patients with no allergy symptoms.

Based on the information in Vivit's files obtained from Apostol, interviews conducted with Vivit's patients and claims filed by Vivit or his patients to their insurers, the government obtained enough evidence to secure a four-count indictment in July 1998. In December 1998, a new grand jury returned a seventeen-count superseding indictment charging Vivit with devising and executing a scheme to defraud. The indictment alleged that Vivit engaged in fraudulent use of the mails on seventeen separate instances between 1993 and 1996, and the final count of the indictment claimed that one check was mailed in furtherance of the conspiracy as late as August 6, 1996. On June 29, 1999, the district court conducted a jury trial to consider the charges against Vivit.

At trial, the government produced the testimony of twenty-six former Vivit patients and entered into evidence false bills and medical reports created for forty-nine patients. Each of the testifying patients had in some way been involved in Vivit's scheme to defraud their insurers. Some, including Roy, Myla and Lauro Sansano, merely filled out false attendance sheets at Vivit's request. However, the Sansanos testified that they back-dated many of the signatures to conceal a considerable lapse of time between when the accident from which they claimed injuries occurred and their initial visit to Vivit, belying Vivit's claim that the attendance sheets were used to make future appointments. In addition, Roy Sansano testified that they visited Vivit because a friend told him that to receive a favorable insurance settlement, they should see Vivit, a doctor who would produce false medical documentation to support their claim.

Other patients testified about more extensive fraudulent conduct. For example, Veronica Leighton testified that she received $53,000 as a result of filing a false disability insurance claim. Leighton, who pleaded guilty to tax evasion and mail fraud for her crimes, first submitted a false medical bill to her insurer based, in part, on twenty-nine fictitious visits to Vivit's clinic for which Vivit created a record. Leighton decided that she also should seek disability benefits, and she testified that Vivit told her how to prepare a fraudulent claim for her disability insurer. In conjunction with this fraud, Vivit filled out a certificate of disability swearing that in his medical opinion Leighton was disabled.

Many other patients testified that, in addition to overbilling by creating a false attendance record, Vivit exaggerated the amount of treatment that he performed. Vivit's records showed that he had performed ultrasound therapy on numerous patients in 1993, but the government produced the supplier of Vivit's ultrasound machine, who testified that the machine was not delivered until the spring of 1994. In addition, Vivit's files show that he performed an examination and two follow-up examinations on Sharlon Silvestre, but Silvestre testified that Vivit never examined him. Vivit also included a diagnosis of whiplash and migraines in his medical record, but Silvestre testified that he did not have headaches and that Vivit never informed him that he suffered from whiplash. Vivit's files also show that he performed therapy on Jennifer Cailles's back and neck. Cailles, who was sixteen at the time when she was treated by Vivit, testified that this therapy was never performed. In addition, many other patients added testimony to the record similar to that offered by Silvestre and Cailles.

Other patients testified that Vivit failed to provide adequate medical services in the course of his care. Avelina De La Rosa testified that she had extremely high blood pressure following an automobile accident, but Vivit failed to test her blood pressure during the course of his diagnostic examination. Melandro Lubguban testified that he visited Vivit in pain following an automobile accident, but Vivit failed to examine him at all. Phina Garcia testified that she was covered with bruises when she visited Vivit, but Vivit did not examine her and instead approved hydro collator treatments for her, a treatment plan that medical experts advised against.

Del Moral also testified for the government, stating that she had performed "microphone" (ultrasound) therapy, hydro collator therapy and electrical muscle stimulation therapy on numerous patients without Vivit's supervision. She testified that the unsupervised therapy occurred largely because Vivit arrived at the clinic in the afternoon, and Del Moral performed one or two therapy sessions each morning. Although she lacked a license to perform physical therapy, she claimed that Vivit had trained her and that she was taking courses on therapy. Del Moral also testified that Vivit told her to make his patients falsify attendance sheets to inflate the amount of therapy they supposedly received. Del Moral testified that Vivit prepared patient bills, sometimes with the aid of Apostol, and gave them to her to file and mail.

The government also presented the testimony of two experts, Drs. Daniel Samo and Gregory Mulford. Both doctors testified that the therapy that Vivit prescribed would be useless without an additional prescription of a course of exercise. They also testified that Vivit's failure to examine patients constituted a "hideous" dereliction of duty and that the prescription of hydro collator or electrical muscle stimulation therapy to patients with bruising was contraindicated. Finally, the doctors provided expert analysis about the amount which Vivit's fraudulent claims of treatment cost various insurers. Both experts testified that because all the treatment prescribed by Vivit was unnecessary, the entire amount of his bills should be considered fraudulent.

On the basis of this evidence, the jury returned a guilty verdict against Vivit on sixteen of the seventeen counts of the indictment. The district court sentenced Vivit in October 1999. Because it found that the convictions all involved substantially the same harm, the court chose to group all the convictions, pursuant to United States Sentencing Guidelines sec. 3D1.2. The total offense level of the combined counts started at level six as directed by sec. 2F1.1(a), but the court increased the total offense level to thirteen because it found that the government had proved that, in aggregate, Vivit had defrauded insurers of between $120,000 and $200,000.

The government originally argued that Vivit had defrauded insurers of $265,618.80, of which about $60,000 should have been removed for legitimate pain and suffering of Vivit's patients. However, Vivit argued that the actual loss was much less because of the medical services that he provided. The parties argued extensively over the computation of loss, and the government, in support of its position, presented the court with a "Vivit loss chart" that listed all the costs associated...