United States of America v. P. G. Raithatha

*The Honorab le John Feikens, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0143P (6th Cir.)
File Name: 04a0143p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
P. G. RAITHATHA,
Defendant-Appellant.
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No. 02-6013
Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 00-00041—Karl S. Forester, Chief District Judge.
Argued: January 29, 2004
Decided and Filed: May 19, 2004
Before: MERRITT and SUTTON, Circuit Judges;
FEIKENS, District Judge.*
_________________
COUNSEL
ARGUED: Glenn V. Whitaker, VORYS, SATER,
SEYMOUR & PEASE, Cincinnati, Ohio, for Appellant.
2 United States v. Raithatha No. 02-6013
David P. Grise, ASSISTANT UNITED STATES
ATTORNEY, Lexington, Kentucky, for Appellee.
ON BRIEF: Glenn V. Whitaker, Eric W. Richardson,
VORYS, SATER, SEYMOUR & PEASE, Cincinnati, Ohio,
for Appellant. David P. Grise, Charles P. Wisdom, Jr.,
ASSISTANT UNITED STATES ATTORNEYS, Lexington,
Kentucky, for Appellee.
_________________
OPINION
_________________
FEIKENS, District Judge.
I. INTRODUCTION
Defendant, Dr. P.G. Raithatha, was convicted by a jury of
scheming to defraud private health insurance companies and
Medicare/Medicaid, in violation of 18 U.S.C. §1347, and of
making false statements to the Department of Labor (DOL)
and to the Immigration and Naturalization Service (INS), in
violation of 18 U.S.C. §1001. Defendant was sentenced to 27
months of imprisonment. Defendant appeals his conviction
and sentence.
On appeal, defendant argues: (1) the jury’s conviction as
to all counts should be reversed because defendant alleges
there is insufficient evidence to sustain his conviction, or
alternatively, that defendant should be granted a new trial;
and (2) the district court erred in attributing any loss figure to
defendant as to Counts 1 through 20, and that therefore the
district court’s loss calculations for sentencing purposes
should be reversed.

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No. 02-6013 United States v. Raithatha 3
II. FACTUAL BACKGROUND
A. Defendant’s Medical Practice
Defendant is a physician who owned and operated two
clinics in 1997, the McKee Medical Center in McKee,
Kentucky, and the Richmond Medical Center in Richmond,
Kentucky. In 1997, defendant sold the clinics to Mountain
After Hours Clinic Corporation (“MAHC”). As part of the
sale, defendant became an employee of MAHC and was
issued one-sixth of the shares of stock in MAHC. By 1998,
MAHC owned four other clinics in Hazard, Nicholson,
London, and Somerset, Kentucky.
During 1997, when defendant owned the McKee and
Richmond clinics, the billing for both clinics was done at the
McKee clinic. Tammy Spurlock, defendant’s office manager,
testified that she, Beverly Lainhart, and Renee Hudson did
billing work. Between January and December of 1998, all
billing for the six MAHC clinics was performed by an outside
billing service, Office Management Services (“OMS”). In
April of 1999, OMS stopped providing billing services for
MAHC, and the McKee clinic began doing billing for all of
the clinics.
To bill its services, a medical clinic issues an invoice to the
patient’s insurer that contains a current procedure terminology
(“CPT”) code. The CPT code indicates to the insurer the
level of service rendered by the clinic and the amount of
reimbursement owed to the clinic. When a medical
practitioner sees a patient, the practitioner records a CPT code
on an “encounter form” to record the services performed. The
CPT codes for established patients range from the least
expensive, 99211, to the most expensive, 99215. The CPT
codes for new patients range from the least expensive, 99201,
to the most expensive, 99205. (Cost. Tr. 53.) One type of
“up-coding” scheme occurs where the CPT numbers are
changed on the encounter forms and/or billing sheets sent to
the insurance companies so that it appears as if the clinic
4 United States v. Raithatha No. 02-6013
performed more expensive services than were actually
provided.
In 1998, defendant helped recruit seven foreign physicians
for MAHC. Defendant recruited them under a program that
allows foreign doctors to stay in the United States if they
secure employment in medically under-served areas. Under
this program, MAHC had to meet several requirements
including submitting a Labor Condition Application (“LCA”)
to the DOL, and a Petition for Nonimmigrant Worker (an “I-
129 form”) to the INS, setting forth information such as the
physician’s wage, for each physician hired. MAHC was
required to pay each foreign doctor no less than the prevailing
wage for the area – the average wage paid to physicians in the
area for comparable work.
The McKee clinic was designated a “rural health clinic” by
Medicare. As a rural health clinic, the McKee clinic was
reimbursed a flat rate for each Medicare/Medicaid patient it
saw, regardless of the treatment rendered. The McKee clinic
was required to submit to Medicare a yearly “cost report” – a
summation of the costs incurred by the clinic in treating
patients. Once a clinic reached the maximum reimbursement
rate set by Medicare/Medicaid, additional expenses on the
cost report were not reimbursed during that year. However,
reported costs were used to calculate future
Medicare/Medicaid reimbursement rates per patient. (Shreve,
Tr. 100.)
In May 1998, a cost report was prepared for the McKee
clinic for the period of October 1, 1996 through
September 30, 1997, which included $50,393.53 of
defendant’s personal expenses. Defendant alleges that when
defendant operated as a sole proprietor of the Richmond and
McKee clinics, prior to their purchase by MAHC, defendant
“often used business checks to pay personal expenses and
would, at the end of the year, separate the personal and
business expenses in order to prepare the corporation’s tax
returns.” (Def. Br. 113.) Defendant contends that his

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No. 02-6013 United States v. Raithatha 5
personal expenses were inadvertently included on the cost
report.
B. Prosecution of Defendant
On July 24, 2000, a twenty-count indictment was filed
against defendant. Counts 1 and 4 charged defendant with
defrauding private insurance companies in 1997 (Count 1)
and 1998 and 1999 (Count 4), in violation of 18 U.S.C.
§1347. Counts 1 and 4 charged defendant with instructing
billing staff to: (a) raise the CPT codes on invoices when the
physician had reported a lower level of service; (b) submit
invoices to insurance companies for services performed by
other physicians, as if defendant had performed them; and
(c) submit claims with a diagnosis listing an illness, when the
patient did not have an illness. (Indictment, 2-3, 8-10.)
Counts 2 and 5 charged defendant with scheming to
defraud Medicare/Medicaid in 1997 (Count 2) and 1998 and
1999 (Count 5), in violation of 18 U.S.C. §1347. (Indictment,
4-6, 10-12.) Counts 2 and 5 charged defendant with causing
patients to present themselves for medically-unnecessary
visits by: (a) refusing to authorize refills on prescriptions and
preventing employees from authorizing refills of
prescriptions; (b) making unannounced and unrequested home
visits to patients; (c) approaching people on the street and
ushering them into the clinic for unscheduled examinations;
(d) examining people who had come into the clinic for non-
medical reasons, such as to pay debts owed to defendant;
(e) ordering medical tests not related to patients’ conditions;
(f) falsely representing that other physician employees had
specialties so that patients would be examined an additional
time by a “specialist”; and (g) refusing to give test results
until an additional appointment was kept. (Indictment, 4-6,
10-12.)
Count 3 charged defendant with defrauding
Medicare/Medicaid, in violation of 18 U.S.C. §1347, by
submitting a cost report for 1997 that included personal
6 United States v. Raithatha No. 02-6013
expenses unrelated to patient care. Included in those
expenses was money which was actually spent to furnish and
complete defendant’s home. (Indictment, 6-7.)
Counts 6 through 13 charged defendant with submitting
false statements to the DOL, in violation of 18 U.S.C. §1001,
by submitting LCAs that misstated the salaries of seven
foreign physicians employed by MAHC. The indictment
charged defendant as “the person in charge of recruiting
physicians for the Corporation.” (Indictment, 12.) The
indictment alleged that the “forms falsely overstated the
salary to be paid to the physicians, in order to disguise the
fact that the physicians were being paid less than the required
amount.” (Indictment, 13.)
Counts 14 through 20 charged defendant with submitting
false statements to the INS, in violation of 18 U.S.C. §1001,
by submitting I-129 forms that misstated the salaries of the
seven foreign physicians identified in Counts 6 through 13.
(Indictment, 15-16.)
The defendant pleaded not guilty to all counts.
Trial began on July 2, 2001, before Chief Judge Karl S.
Forester. Defendant moved for a judgment of acquittal. The
district court denied the motion. On July 19, 2001, the jury
returned a guilty verdict as to all counts (Counts 1 through
20). Defendant timely moved for a new trial. On
September 12, 2001, the district court denied the motion for
a new trial. This appeal followed, both as to defendant’s
conviction and sentence as to all counts.
C. Presentence Investigation Report (PSR) Loss
Calculation
The probation office determined that it would be difficult
to discern an actual loss figure for Counts 1 and 4, but that an
intended loss figure could be calculated “for the up-coding
conduct which occurred in 1999.” Therefore, the PSR

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No. 02-6013 United States v. Raithatha 7
calculated an intended loss figure of $206,461.43 for Counts
1 and 4, based on evidence of defendant’s up-coding scheme.
The PSR calculated an intended loss figure of $50,393.53 for
Count 3, equal to the amount of defendant’s personal
expenses which were included in the cost report submitted to
Medicare/Medicaid. The probation office determined that an
intended loss amount for Counts 2 and 5, related to
defrauding Medicare/Medicaid, could not be quantified.
Thus, the PSR recommended that a total intended loss figure
of $256,854.96 ($206,461.43 + $50,393.53) should be
attributed to defendant as to Counts 1 through 5.
The PSR arrived at the intended loss figure of $206,461.43
for Counts 1 and 4 through a complex series of ten steps.
First, the probation office went through encounter forms
seized from the McKee Medical Center on November 17,
1999, and extracted all of the encounter forms from 1999 for
patients with private insurance that were marked with 99211,
99212, 99201, and 99202 CPT codes. Second, the encounter
forms in each CPT code category were counted. Third, of the
sixty-four private insurance companies billed by MAHC in
1999, a sample of ten insurance companies were contacted to
determine their usual and customary charges for each CPT
code.
Fourth, using the customary charges for each CPT code at
each of the ten selected insurance companies, the probation
office computed the payment difference that would have
resulted had each category of CPT codes been up-coded and
billed at a higher CPT code. For example, the probation
office calculated the payment difference between 99211 to
99213 to determine the amount of loss each of the ten
insurance companies would have suffered had encounter
forms marked with a 99211 been up-coded and billed under
a 99213 CPT code. The probation office determined the
payment differences between the following additional CPT
categories for each of the ten insurance companies: 99212 to
99213, 99201 to 99203, and 99202 to 99203.
8 United States v. Raithatha No. 02-6013
Fifth, an average payment difference was computed for
each of the above categories of possible CPT up-codes. For
example, the probation office determined that the average
payment difference between services coded 99211 and 99213
was $28.24. (PSR, ¶50-54.) Sixth, the number of encounter
forms in each CPT category (determined in step 2) was
multiplied by the average payment difference for each
category (determined in step 5) to calculate an intended loss
figure for each category of CPT codes. For example, for CPT
code 99211, the probation office calculated an intended loss
figure for 1999 of $35,221.10 by multiplying $28.45 (the
average payment difference between 99211 and 99213) by
1,238 (the number of 99211 encounter forms for 1999 seized
from the McKee Clinic). Seventh, the intended loss figures
for each CPT category were added together to come up with
a total intended loss figure for 1999 of $112,820.45. This
figure represents the loss which would have occurred had
each claim in each CPT category for 1999 been up-coded.
(PSR, ¶55-56.)
Eighth, the probation office determined an intended loss
figure for 1998 of $56,410.23, by backtracking from the
intended loss figure calculated for 1999. The probation office
determined that defendant had “extensive control” over the
billing of three of the six clinics in the MAHC system during
1998, when the billing for MAHC was conducted by OMS.
(PSR, ¶57.) Therefore, the probation office calculated the
intended loss figure for 1998 by multiplying the intended loss
figure for 1999 by 50%.
Ninth, the probation office determined an intended loss
figure for 1997 of $37,230.75. Since defendant operated only
two clinics in 1997, the probation office calculated an
intended loss for 1997 by multiplying the intended loss figure
for 1999 by 33%. (PSR, ¶58.) Finally, the probation office
added together its intended loss calculations for 1999, 1998,
and 1997 to arrive at a total loss calculation of $206,461.53
for Counts 1 and 4. (PSR, ¶59.)

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No. 02-6013 United States v. Raithatha 9
For Counts 6 through 20, the probation office calculated an
actual loss figure of $216,833.94. (PSR, ¶73.) This was
based on the amount of pay the foreign physicians were
entitled to but did not receive during their employment with
MAHC. (PSR, ¶73.) For Counts 6 through 20, the probation
office calculated an intended loss of $523,670.00. This figure
equals the difference between the wage reported to the United
States minus the contract amount, multiplied by the number
of years of the contract, for each foreign physician. This
intended loss amount represents the amount of money per
contract that MAHC stood to gain by illegally paying its
foreign physicians below the prevailing wage. The probation
office used the intended loss calculation for Counts 6 through
20 ($523,670.00), because it was greater than the calculated
actual loss, and combined it with the intended loss calculation
for Counts 1 through 5 ($256,854.96) to calculate a total
intended loss figure for Counts 1 through 20 of $780,524.96.
Based on this loss calculation, the probation office
recommended a total offense level of 20. U.S.S.G §2F1.1
calls for a base offense level of 6 for violations of 18 U.S.C.
§1347 and §1001. The PSR recommended a 10 level increase
because the intended loss totaled more than $500,000 but less
than $800,000. U.S.S.G. §2F1.1(b)(1)(K). The PSR
recommended a 2 level increase because the offense included
more than minimal planning, and an additional 2 level
increase because the abuse of a private trust facilitated the
offense. Thus the PSR recommended a base offense level of
6 plus a 14 level increase, for a total offense level of 20.
Based on the recommended total offense level of 20 and
defendant’s criminal history category of I, the PSR
recommended a guideline range for imprisonment of 33 to 41
months.
D. Defendant’s Sentencing
On August 2, 2002, the district court sentenced defendant
to 27 months. The district court did not order restitution.
(Sentencing, Tr., 37.) The district court adopted the PSR’s
10 United States v. Raithatha No. 02-6013
calculation of an intended loss of $206,461.43 for Counts 1
and 4, and an intended loss of $50,393.53 for Count 3, for a
total intended loss of $256,854.96 for Counts 1 through 5.
With regards to Counts 6 through 20, the district court
adopted the PSR’s actual loss calculation of $216,833.94,
after determining that the intended loss calculation relating to
Counts 6 through 20 was too speculative. (Sentencing, Tr.
77-80.) However, because the court determined that the
conduct charged in Counts 6 through 20 fell outside the
heartland of cases that U.S.S.G. §2F1.1 (the applicable
Sentencing Guideline) was designed to address, the court
decided not to hold defendant accountable for the actual loss
caused by his alleged conduct in Counts 6 through 20.
Accordingly, the district court determined that the total loss
attributable to defendant was $256,854.96 (the intended loss
calculated for Counts 1 through 5 minus the actual loss
calculated for Counts 6 through 20).
Applying U.S.S.G. §2F1.1, the district court determined
that the base offense level was 6, and added 4 points as
recommended in the PSR because the offense involved more
than minimal planning and the violation of a private trust.
The district court added an 8 level increase because the
amount of loss it determined was attributable to defendant
was above $200,000 and below $350,000. U.S.S.G.
§2F1.1(b)(1)(I). Thus, the district court assessed a total
offense level of 18, for which the applicable guideline range
was 27 to 33 months. (Sentencing Tr. 86.) The district court
sentenced defendant to 27 months of imprisonment and two
years supervised release on each count to be served
concurrently. (Sentencing Tr. 95.) Now defendant appeals
both his conviction and sentence as to all counts.

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No. 02-6013 United States v. Raithatha 11
III. ANALYSIS
A. SUFFICIENCY OF EVIDENCE
1. Standard of Review
When evaluating a claim of insufficient evidence, a
reviewing court must determine “whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v.
Harris, 293 F.3d 970, 974 (6th Cir. 2002) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)(emphasis in original)). A
defendant claiming insufficiency of evidence bears a “very
heavy burden.” United States v. Vannerson, 786 F.2d 221,
225 (6th Cir. 1986). “[C]ircumstantial evidence alone can
sustain a guilty verdict.” United States v. Ellerbee, 73 F.3d
105, 107 n.2 (6th Cir. 1996) (citation omitted). The evidence
need not remove every possible hypothesis except that of
guilt. United States v. Williams, 195 F.3d 824, 826 (6th Cir.
1999) (citations omitted).
2. Health Care Fraud (Counts 1-5) – 18 U.S.C.
§1347
To convict a defendant of health care fraud under 18 U.S.C.
§1347, the Government must demonstrate that the defendant:
(1) knowingly devised a scheme or artifice to defraud a health
care benefit program in connection with the delivery of or
payment for health care benefits, items, or services;
(2) executed or attempted to execute this scheme or artifice to
defraud; and (3) acted with intent to defraud. (Jury Instruction
No. 12, July 19, 2001.) The defendant must have intended,
through some deception, “to induce another to part with
property or to surrender some legal right.” United States v.
Frost, 125 F.3d 346, 354 (6th Cir. 1997) (cited in United
States v. DeSantis, 134 F.3d 760, 764 (6th Cir. 1998)).
12 United States v. Raithatha No. 02-6013
Defendant argues there is insufficient evidence to sustain
his conviction for Counts 1 and 4, defrauding or attempting
to defraud private health insurance companies. However,
many staff members testified that defendant instructed them
to bill office visits covered by private insurance under CPT
codes 99213 or 99203, regardless of the CPT code entered by
the attending physician on the encounter form. The staff
members were aware that this “up-coding” scheme resulted in
higher reimbursement from private insurance companies.
(Justice, Tr. 164.) After the FBI searched the McKee clinic
and defendant’s home and seized encounter forms, insurance
information, and records, staff members testified that the up-
coding ceased. (Howard, Tr. 76-77.)
In addition, staff members testified that defendant routinely
ordered tests unrelated to his patients’ conditions and
supported the tests with false diagnoses. (Meadors, Tr. 5-10.)
Zeren, a nurse practitioner working at the McKee clinic,
testified that after she performed sports physicals on children
at local schools and found no indication of upper-respiratory
infections, defendant, who had not been present at the
examinations, falsely diagnosed them as having upper
respiratory infections. (Zeren, Tr. 45-51.) Taking this
evidence in the light most favorable to the prosecution, a
reasonable juror could have found defendant guilty of
defrauding or attempting to defraud private insurance
companies, as charged in Counts 1 and 4.
Defendant argues there is insufficient evidence to sustain
his conviction for Counts 2 and 5, defrauding
Medicare/Medicaid by causing patients to come into
defendant’s clinics for medically unnecessary examinations
or treatments. However, physicians working for defendant
testified that defendant told them to bring Medicaid patients
back for additional office visits, instead of giving them a
prescription with refills, so that Medicaid could be billed for
additional visits. (Patel, Tr. 25-26.) Staff members testified
that when business was slow, defendant solicited patients
from the street and billed them as office visits. (Justice, Tr.

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No. 02-6013 United States v. Raithatha 13
183.) Staff members testified that people would come into
the office for purposes unrelated to receiving medical care,
such as paying debts to defendant, and “before they left, they
were a patient,” and billed as a patient. (Amon, Tr. 114.)
Taking this evidence in the light most favorable to the
prosecution, a reasonable juror could have found defendant
guilty of defrauding or attempting to defraud
Medicare/Medicaid, as charged in Counts 2 and 5.
Defendant also argues there is insufficient evidence to
sustain his conviction for Count 3, defrauding
Medicare/Medicaid by including personal expenses in a cost
report submitted to Medicare/Medicaid for the McKee Clinic
in 1997. The cost report included expenses for defendant’s
personal residence totaling $50,393.53. Though defendant
did not sign the report, he was given an opportunity to review
it before it was submitted. (Lynn, Tr. 131-132.) When
defendant purchased a TV and stereo system for his residence
he instructed the salesman to issue the invoice to the McKee
Clinic, as if the items had been purchased by the clinic and
not for defendant’s personal use. (Miller, Tr. 203; Ware,
Tr.198.) Taking this evidence in the light most favorable to
the prosecution, a reasonable juror could have found that
defendant intended to defraud Medicare/Medicaid by
including personal expenses on the cost report submitted to
Medicare/Medicaid.
3. Making False Statements (Counts 6-20) –
18 U.S.C. §1001
In order to establish a violation of 18 U.S.C. §1001, the
Government must demonstrate that: (1) the defendant made
a statement; (2) the statement is false or fraudulent; (3) the
statement is material; (4) the defendant made the statement
knowingly and willfully; and (5) the statement pertained to an
activity within the jurisdiction of a federal agency. United
States v. Logan, 250 F.3d 350, 361 (6th Cir. 2001) (citations
omitted). A statement is “material” if it “has the natural
14 United States v. Raithatha No. 02-6013
tendency to influence, or is capable of influencing, the federal
agency.” Id. at 361 (citations omitted).
Defendant argues there is insufficient evidence to sustain
his conviction for making false statements or causing false
statements to be made to the DOL and the INS, regarding the
salaries of seven foreign physicians employed by MAHC.
For each foreign physician hired, MAHC was required to file
an LCA with the DOL and an I-129 form with the INS stating
the employee’s prevailing wage salary. The evidence
demonstrated that the submitted LCAs and I-129 forms
overstated the salary MAHC actually paid the foreign
physicians. Defendant’s payroll manager testified that she
signed the LCAs and I-129 forms at defendant’s direction.
(Bowling, Tr. 13.)
In addition, several foreign physicians testified to
defendant’s role in making contracts with the physicians, after
the forms had been submitted to the DOL and the INS, that
reduced the physician’s salary from that stated on the
submitted forms. (Dani, Tr. 37-39.) One physician testified
that defendant threatened her with visa problems when she
questioned having to sign an amendment to her original
contract (for $110,000/year) which reduced her salary to
$70,000/year. (Ravisankar, Tr. 6-9.) Taking this evidence in
the light most favorable to the prosecution, a reasonable juror
could have found that defendant was guilty of intentionally
causing false statements to be made to the DOL and INS.
Defendant argues that his conviction on Counts 7 and 15,
charging defendant with causing false statements to be made
to the DOL and INS about one of the foreign physicians,
Dr. Patel, should be reversed. Defendant contends that the
forms submitted by the government are forms which were
actually prepared and submitted for Dr. Divya Joshi, and not
for Patel. With regard to defendant’s contention as to Counts
7 and 15, the record is abundantly clear that such false
statements were made. Defendant’s contention that certain

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No. 02-6013 United States v. Raithatha 15
forms referring to another physician were submitted
mistakenly for Patel is therefore harmless error.
B. AMOUNT OF LOSS ATTRIBUTED TO
DEFENDANT FOR SENTENCING
1. Standard of Review
A court of appeals reviews de novo a sentencing court’s
interpretation of the Sentencing Guidelines, but must uphold
a sentencing court’s factual findings unless “clearly
erroneous.” United States v. Ware, 282 F.3d 902, 907 (6th
Cir. 2002). A factual finding is “clearly erroneous” when
“the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” Id. (citing United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)).
A sentencing court “need not determine the amount of loss
with precision.” United States v. Kohlbach, 38 F.3d 832, 835
(6th Cir. 1994) (citations omitted). A sentencing court “need
only make a reasonable estimate, given the available
information.” United States v. Guthrie, 144 F.3d 1006, 1011
(6th Cir. 1998). A defendant who challenges such a
computation must carry the burden of demonstrating “that the
court’s evaluation of the loss was not only inexact but outside
the universe of acceptable computations.” United States v.
Tardiff, 969 F.2d 1283, 1288 (1st Cir. 1992) (cited in
Kohlbach, 38 F.3d at 841).
For sentencing purposes, a defendant will be held
accountable for the actual or intended loss to a victim,
whichever is greater, or a combination thereof. United States
v. Wade, 266 F.3d 574, 586 (6th Cir. 2001). See also
U.S.S.G. §2F1.1, comment. n.7. “[S]o long as the intended
loss is supported by a preponderance of the evidence, the
district court may use it in reaching the appropriate offense
level.” United States v. Logan, 250 F.3d 350, 371 (6th Cir.
2001). In 2001, amendments to the Sentencing Guidelines
16 United States v. Raithatha No. 02-6013
1The 200 1 amendments consolidated the Guid elines for Theft,
§2B1.1, Property Destruction, §2B1.3 and Fraud, §2F1.1, into one
guideline, §2B 1.1 (Theft, Property Destruction, and Fraud). The revised
§2B 1.1 guideline, though not app licable at the time o f defendant’s
sentencing, clarified the meaning o f “intende d loss” referred to in § 2F1 .1
and thus should be taken into consideration b y this Court.
clarified that “intended loss” means “the pecuniary harm that
was intended to result from the offense” and “includes
intended pecuniary harm that would have been impossible or
unlikely to occur.” §2B1.1, comment. n.3(A)(ii) (emphasis
added).1
2. Loss Calculation
In this case, the only amounts of loss attributed to
defendant, and thus at issue on appeal, are $206,461.43 for
Counts 1 and 4 and $50,393.53 for Count 3. Defendant
argues the loss calculation for Counts 1 and 4 adopted by the
district court is based on speculation. Defendant argues that
there is no evidence that he ordered “all” encounter forms to
be up-coded, that all of the encounter forms in the
Government’s sample were not up-coded, and that there was
never an order to up-code new patient forms or to up-code
defendant’s encounter forms and that therefore neither of
these should have been included in the loss calculation.
Defendant argues the intended loss calculation as to Count 3
is clearly erroneous because it was allegedly impossible for
him to inflict the amount of loss for which the district court
held him accountable.
Unlike the contentions of defendant as to evidence
regarding his conviction, his contentions regarding Counts 1,
4, and 3 relate only to sentencing procedures. Defendant was
found guilty of the charges in these counts and our inquiry
goes only to the amount of loss for which defendant may be
held accountable.

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No. 02-6013 United States v. Raithatha 17
As to the loss calculation regarding Counts 1 and 4,
defendant contends there was no evidence that any order was
given to up-code new patient CPT codes (the “9920-" series).
The record shows otherwise:
Q. “Okay. Now, did he also give you orders to up-code
a 99201 code to a higher-paying code?”
A. “We was [sic] told to up-code any office visit like
that.”
Q. “Okay. All Right. So he told you to code a 99201 up to
the highest level that you could do, 99203?”
A. “Yes.”
(Lainhart, Tr. 40-41.) Defendant suggests that his encounter
forms were erroneously included in the loss calculation.
However, the Government stated unequivocally at
defendant’s sentencing hearing that “Dr. Raithatha’s forms
were not counted in the encounter forms for the 1999 figures
that were given to the probation office.” (Grise, Sentencing,
Tr. 74.)
In addition, the selection of the ten most frequently billed
insurance companies to provide figures upon which to
compute average pay differences between CPT code
categories was reasonable. Furthermore, defendant’s
argument that all of the encounter forms in the Government’s
sample were not up-coded goes to actual loss, and therefore
does not disturb the district court’s calculation of intended
loss. Finally, the use of the 1999 intended loss amount to
calculate the lesser intended loss amounts for 1998 and 1997
was reasonable. Therefore, it was not clearly erroneous for
the district court to hold defendant accountable for an
intended loss of $206,461.43 as to 1 and 4. Defendant has
failed to demonstrate that the loss calculation as to Counts 1
and 4 was “outside the universe of acceptable computations.”
Kohlbach, 38 F.3d at 841.
18 United States v. Raithatha No. 02-6013
With regards to Count 3, defendant argues that no loss
should be attributed to him because he contends that it was
impossible for him to have caused Medicare/Medicaid any
loss by including the $50,393.53 in personal expenses on the
cost report because his clinic had already reached its
maximum reimbursement rate. (Appellant, Br. 62.)
However, loss can be attributed to a defendant based on a
finding of actual loss or intended loss, and a finding of
intended loss is not limited to those losses possible to inflict,
or those gains possible for a defendant to achieve. U.S.S.G.
§2B1.1, comment. n.3(A)(ii).
There was sufficient evidence to find that defendant
intended to mislead Medicare/Medicaid as to the $50,393.53
in personal expenses included on the cost report. It is unclear
what difference defendant anticipated the inclusion of his
personal expenses would make in the amount defendant’s
clinic was reimbursed for 1997, or in future reimbursement
rates. However, where a defendant seeks to fraudulently pass
off an amount of personal expenses as legitimate patient-
related expenses, as in the present case, logic dictates that a
defendant be held accountable for intending to cause the
amount of loss about which he intentionally lied. Therefore,
it was not clearly erroneous for the district court to hold
defendant accountable for an intended loss of $50,393.53 as
to Count 3.
IV. CONCLUSION
For the above reasons, the conviction and sentence of the
district court is AFFIRMED.

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