BENSON WEINTRAUB, the nationally renown federal sentencing expert and ANTHONY C. VITALE of the Health Law Offices of Anthony C. Vitale, PA presented a novel issue in health care fraud during a 5-day sentencing proceeding against Rodolpho Ramirez, a DME operator sentenced by US District Judge Adalberto Jordan (S.D.Fl.) to 24-months imprisonment for making fraudulent claims to Medicare and paying kickbacks to a local physician.
Weintraub and Vitale were successful in persuading Judge Jordan to assume, without deciding the issue, that an obscure provision of “Special Rules” in the calculation of loss under the Federal Sentencing Guidelines is instructive and resulted in a significant exclusion of “relevant conduct” claimed by the government and a Guideline range approximately half of that requested by John Cunningam and Jay Darden, DOJ Trial Attorneys from the Fraud Section in Washington.
The case attracted considerable attention in the legal profession with both criminal defense lawyers and a Deputy Attorney General observing portions of the extraordinarily lengthy hearing characterized by expert medical testimony about medical necessity, Medicare billing procedures, and medical economics.
The prosecutors argued that for the past year, they consistently employed another loss methodology in 70-100 other cases in the Southern District of Florida, a hotbed of Medicare Fraud, and every Judge accepted it, to which Judge Jordan replied, “Did anyone raise the issue asserted by Mr. Weintraub?” to which the government responded “No.”
Application of the Special Rule, USSG § 2B1.1, comment [(n. 3 (F)(ii)](2007) to health care fraud and kickback cases has divided the courts, but Judge Jordan adopted a modified approach, the net result of which also yielded a downward Booker variance citing the parsimonious “not greater than necessary” clause of 18 U.S.C. § 3553(a). The government sought a Guideline range of 37-46 months; the court determined the range was 27-33; and the court imposed a sentence 3 months below the bottom of the adjusted range. The defense prevailed in reducing the extent of upward adjustment for a leadership role in the offense as well as cutting the dispositive loss figure virtually in half.
Neither party indicated an intention to appeal, and Weintraub, a former Visiting Professor of Law at Hofstra Law School, is scheduled to float the theory again in the July sentencing of a physician in Miami convicted of Conspiracy to Commit Medicare Fraud before Judge Altonaga in Miami. Robert Josephsberg tried the case, obtained a mistrial after 4-5 weeks in United States v. Ana Caos, MD, Case No. 07-20291-Cr-Altonaga (S.D.Fl.).
Weintraub is also slated to conclude a $20 million internet pharmacy case in Dallas later this summer in which he represents the lead defendant and 30 corporate defendants to be sentenced under the Federal Corporate Sentencing Guidelines.
Robert David Malove, Esq. of Ft. Lauderdale is assisting on the internet pharmacy case, United States v. Saran, et. al., Case No. 05-240-Cr-Solis (N.D.Tx.).

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