United States of America v. Rick Van Bryson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided May 15, 2007
No. 05-3212
UNITED STATES OF AMERICA ,
APPELLEE
v.
RICK VAN BRYSON ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00175-01)
Jon S. Pascale, appointed by the court, was on the brief for
appellant.
Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III,
Mary B. McCord, and B. Patrick Costello, Jr. were on the brief
for appellee.
Before: ROGERS , GRIFFITH and KAVANAUGH , Circuit
Judges.
Opinion for the Court filed by Circuit Judge KAVANAUGH .

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KAVANAUGH , Circuit Judge: Bryson pleaded guilty to
defrauding Medicare. As part of his sentence, the District Court
ordered him to pay restitution of $30,338.90 to the Government.
Bryson challenges the District Court’s method of calculating the
restitution amount. We affirm.
I
For several years, Bryson, a podiatrist, submitted fraudulent
reimbursement claims to Medicare. On multiple occasions, he
represented to Medicare that he had performed a reimbursable
medical procedure; in fact, he had performed only routine,
non-reimbursable services such as clipping toenails, removing
corns, and applying topical medication. On August 17, 2005,
Bryson pleaded guilty to one count of making false statements
to Medicare. See 18 U.S.C. §§ 2, 1035. As part of the plea, he
admitted to perpetrating a fraudulent reimbursement scheme
from 1998 until 2001, and he identified seven patients for whom
he submitted false information to Medicare. At the sentencing
hearing, the District Court heard extensive testimony on the
amount of loss caused by Bryson’s scheme. The court
sentenced Bryson to three years of probation and ordered him to
pay restitution of $30,338.90 to the Medicare Fraud Unit. On
appeal, Bryson challenges that restitution figure.
In its initial sentencing submission to the District Court, the
Government proposed a restitution figure of $37,417.34. The
Government explained that this amount was calculated based on
four investigative sources: (1) the false claims filed by Bryson
on behalf of the seven patients named in the plea documents; (2)
a review of Bryson’s files by an expert podiatrist, Paul Kinberg,
which revealed information that was inconsistent with Bryson’s
representations to Medicare; (3) a tally of claims submitted to
Medicare for which Bryson had insufficient, incomplete, or
inconsistent notes, despite the Medicare requirement that

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physicians document treatment for which they seek
reimbursement; and (4) surveys and interviews of former
patients about what kind of medical treatment they received
from Bryson. After its initial submission, the Government
slightly lowered its figure to $37,132.61, explaining that the
initial calculation had included restitution for conduct that
occurred outside of the time period covered by Bryson’s guilty
plea. The Government also took pains to ensure that a patient
included in multiple components was not double-counted; for
example, a patient who indicated on a survey that he had
received no treatment and who also was not mentioned in any
notes in the patient’s file was counted only once.
Bryson argued that the Government substantially overstated
the amount of restitution. In his view, the proper figure was
$20,050.40. This was allegedly an estimate that a prior
prosecutor had suggested to Bryson at some earlier date.
During Bryson’s sentencing hearing, Bryson and the
Government called witnesses to justify their respective
restitution figures. Bryson called two former patients, both in
their 80s, to show that at least some of the interviews and
surveys cited by the Government had not occurred. The first
witness, Martha Feggins, testified that she had never completed
a survey or been interviewed by government agents (although
she repeatedly became confused on the witness stand and gave
contradictory answers at different times during her testimony).
The second witness, Hope Settles, testified that government
agents had not interviewed her son (also one of Bryson’s
patients), as the Government had claimed.
The Government called Jason Marrero, a special agent with
the Department of Health and Human Services who had
investigated Bryson. Agent Marrero presented documentation
showing that he had interviewed both Feggins and Settles’s son

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in connection with his investigation. Agent Marrero also
detailed the steps he had taken in his investigation of Bryson,
which included reviewing Bryson’s medical records, employing
podiatrists to examine both Bryson’s records and the physical
condition of his patients, interviewing Bryson’s patients, and
sending surveys to Bryson’s patients.
Agent Marrero explained the method he used for calculating
the loss to Medicare attributable to Bryson’s fraud. He clarified
that the four-component approach initially described by the
Government was in fact a three-component approach: The first
component (fraudulent claims in connection with the seven
patients named in the plea documents) was actually just a subset
of the fourth component (interviews and surveys of all patients).
Thus, the three components included in Marrero’s final figure
were: (1) Kinberg’s review of Bryson’s files; (2) the government
review of Bryson’s “no notes” files; and (3) patient surveys and
interviews. During his testimony, Marrero re-calculated the
appropriate restitution amount for the period from January 1998
to September 2001 and reached the same figure that the
Government had stated in its revised submission (apart from a
$100 reduction caused by a double-counting error). Agent
Marrero also testified that the loss attributable to Bryson’s entire
scheme through April 2002 was $48,285.39.
The District Court then computed a final restitution amount.
First, the court concluded that the time period for which Bryson
should pay restitution was January 1998 to April 2002, even
though Bryson had pleaded guilty to submitting fraudulent
claims only through September 2001. The court explained that
the Guidelines require the sentencing judge to consider all
relevant conduct, and it was therefore appropriate to award
restitution for Bryson’s conduct “before and after [the] time
period [pled to] and [which] is related and connected to the
scheme that was pled to.” Tr. of Dec. 15, 2005, Hr’g at 160. As

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Agent Marrero had testified, the restitution over this period was
$48,285.39. Second, the court concluded that although the
interviews of patients were reliable, the surveys “pose problems
in that they do not provide the . . . same opportunity for the
face-to-face discussion between the patient and the agent.” Id.
at 164. The court therefore subtracted the amount attributable
only to the surveys ($15,040.70) from the total. Id. at 165-66.
Third, the court excluded the restitution amount attributable to
Bryson’s false claims on behalf of Feggins ($2,905.79), because
her “memory faults” threw into question the accuracy of her
statements to investigators. Id. at 164, 167. The final figure was
$30,338.90. Id. at 167.
II
The Government must prove at sentencing that its proposed
restitution figure is supported by a preponderance of the
evidence. 18 U.S.C. § 3664(e). We review the District Court’s
restitution determination under an abuse of discretion standard.
United States v. Rezaq, 134 F.3d 1121, 1141 (D.C. Cir. 1998).
We examine the factual findings underpinning the restitution
award only for clear error. United States v. Lawrence, 189 F.3d
838, 846 (9th Cir. 1999); see also United States v. Leonzo, 50
F.3d 1086, 1088 (D.C. Cir. 1995).
Bryson raises five objections to the restitution calculation.
First, Bryson argues that it was improper to rely on Agent
Marrero’s analysis because he is “not a medical professional.”
Appellant’s Br. at 19. At the time of his testimony, Agent
Marrero had seven years of experience as an HHS special agent
and had received training in Medicare regulations and billing.
See Tr. of Dec. 6, 2005, Hr’g at 33. Moreover, Agent Marrero
consulted expert podiatrists such as Kinberg throughout his
investigation. It would be odd, to say the least, if a district court

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could not rely on testimony of a trained Medicare fraud
investigator as the court determined the magnitude of a
Medicare fraud.
Second, Bryson claims that the District Court erred by
relying on a restitution figure submitted by the Government,
because the District Court was presented with “a number of
possibilities” during the sentencing hearings. Appellant’s Br. at
14-15. Bryson cites United States v. George, 403 F.3d 470 (7th
Cir. 2005), in which the Seventh Circuit invalidated a restitution
award when different witnesses had submitted widely varying
estimates of restitution to the District Court. See id. at 473-74.
But Bryson’s reliance on George is mistaken. The problem in
George was not the wide range of estimates itself, but rather the
fact that the sentencing judge selected a seemingly arbitrary
figure within that range without “mak[ing] findings of fact or
articulat[ing] his reasons.” Id. at 473. By contrast, here the
District Court carefully explained its analysis, making an effort
to ensure accuracy by excluding the amount attributable both to
the surveys and to the Feggins interview.
Third, Bryson contends that the District Court unreasonably
relied on interviews of Feggins and Settles’s son, even though
Bryson presented testimony that they were never interviewed.
With respect to Feggins, the District Court in fact excluded from
the final restitution award everything attributable to her
interview. And with respect to Settles’s son, the District Court
reasonably credited the testimony and documentation of Agent
Marrero and another agent (Agent Tucker) indicating that they
had interviewed him.
Fourth, Bryson argues that the rest of the surveys and
interviews the Government cited were unreliable because of the
faulty memories of elderly patients and the technical nature of
the questions asked. The District Court shared some of these

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concerns – which is precisely why it excluded all the survey
results from the final calculation. As the District Court put it, a
survey “doesn’t provide an opportunity for the patient to ask a
question” or “for the agent to see that there may be some
hesitation on the part of the patient in regard to the proper
answer to a question.” Tr. of Dec. 15, 2005, Hr’g at 164. The
District Court concluded, however, that the same problems
generally do not exist with the interviews, during which there is
face-to-face interaction between the agents and the patients. Id.
The District Court’s assessment was eminently reasonable, and
we will not disturb it.
Fifth, Bryson asserts that the District Court erred by relying
on the lack of notes in a patient’s file as evidence of Medicare
fraud. We are not convinced. Given Bryson’s guilty plea to a
scheme of Medicare fraud, the overwhelming evidence against
him, and the documentation requirements for Medicare
reimbursements, it was logical for the District Court to conclude
that the lack of any documentation in a patient’s file for a
procedure indicates that Bryson did not perform the procedure.
Finally, Bryson has not argued that the restitution amount
could have been incorrect because it was based in part on
conduct that occurred outside the period covered by his guilty
plea. We therefore do not consider that issue. See Cruz v. Am.
Airlines, Inc., 356 F.3d 320, 333-34 (D.C. Cir. 2004).
We affirm the judgment of the District Court.
So ordered.

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