Tuesday, July 20, 2010

Restitution



MARTIN T.WILLIAMS

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0204p-06.pdf

A jury convicted the defendant on five counts of fraudulently overbilling Medicare, Medicaid, and several private insurance companies as an employee of a psychiatric medical practice. The district court sentenced the defendant to 12 months of probation and ordered him to pay restitution in the amount of $822,459.21. The defendant appealed his conviction, as well as the amount of restitution that he was ordered to pay. He also brought a claim of ineffective assistance of trial counsel. Appellate court affirmed the portion of the district court’s judgment relating to the conviction, but dismissed without prejudice the ineffective-assistance-of-counsel claim, vacated the portion of the district court’s judgment that concerned restitution, and remanded the restitution issue for further consideration.

The Court issued a fairly lengthy opinion, which included a long recitation of a complicated procedural history. Ultimately, it was decided that the ‘deliberate ignorance’ instruction did not conflict with the ‘specific intent’ instruction on the conspiracy charge.

The Court declined to consider the defendant’s ineffective-assistance-of-counsel argument as not ripe. The Court found that the restitution issue had its own complicated procedural history with much blame going to the government’s actions in this regard. It ruled, however, that the doctrine of equitable estoppel could not overcome the mandatory nature of the statute on restitution ’requiring’ the Court to order restitution in the proper amount. The Court also ruled that the district court had failed to comply with Rule 32 by not specifically addressing the defendant’s restitution objections.

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