Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Justice POWELL and Judge WILLIAMS joined.
MURNAGHAN, Circuit Judge:
In August 1994, Dr. Hakki Adam, Appellant, was indicted on fourteen counts of violating 42 U.S.C. § 1320a-7b(b) (1988), under which it is illegal for any person knowingly to solicit or receive remuneration in return for patient referrals if payment for services is to be made in whole or in part out of federal welfare funds. At trial, the government argued that Appellant, an internist, received illegal kickbacks from a cardiologist with whom he shared office space, Dr. Merhdad Mostaan, from November 1988 until December 1991. The government contended that cancelled checks and ledger entries by Mostaan showed that, at first, Mostaan's payments to Appellant fluctuated greatly, depending on how many patients Appellant referred to Mostaan each month. Mostaan, who was granted immunity by the government, testified that, in an effort to regularize the payments and to make them appear legitimate, he and Appellant signed an agreement in early 1990 purporting to establish a leasing arrangement for Mostaan's use of Appellant's office and for equipment that Mostaan stored there.
Appellant contended at trial that all payments received from Mostaan were for rent. On appeal, Appellant further maintained that a letter purportedly written in February 1989, in which Appellant stated a desire to withdraw from an agreement to join with Mostaan in purchasing equipment, "demonstrates [Appellant's] withdrawal from any illegal arrangement with Mostaan and corroborates his defense that this was a standard lease arrangement with sloppy bookkeeping."
The jury convicted Appellant on all fourteen counts. In January 1995, Appellant filed a motion for a new trial, claiming that he had received ineffective assistance of counsel. The court denied the motion.
Sentencing occurred in May 1995. Under the 1994 edition of the Federal Sentencing Guidelines, Appellant was assigned a base level of six. The level was then enhanced by nine: five pursuant to Guideline § 2F1.1(b)(1)(F) due to total losses of $50,000, two for abuse of a position of trust under Guideline § 3B1.3, and two for more than
Appellant contends that he received ineffective assistance of counsel at trial, that the prosecutor made improper remarks during her closing argument, and that his sentence was improperly calculated. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
I. Ineffective Assistance of Counsel
Appellant's claim of ineffective assistance of counsel was raised in the district court as grounds for a Rule 33 motion for a new trial. We review the district court's denial of that motion only for abuse of discretion. See United States v. Smith, 62 F.3d 641, 650-51 (4th Cir. 1995).
Ineffective assistance claims are, of course, governed by the two-part test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984): an appellant must show that his counsel's performance was deficient and that the deficient performance prejudiced the defense. With respect to the first requirement, an appellant must show that his attorney's performance "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. To meet the second requirement, an appellant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. at 2064. The Strickland Court further observed:
Id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).
Appellant identifies several respects in which he believes that the performance of his trial counsel was deficient. He alleges that counsel negligently failed to introduce into evidence a letter dated February 1989 from Appellant to Mostaan purporting to rescind an agreement to purchase equipment; that counsel did not attempt to impeach the testimony of a government investigator by producing witnesses who would challenge the investigator's account of his conversations with Appellant; that counsel failed to call Appellant's and Mostaan's neighbor as a witness to impeach Mostaan's testimony; that counsel did not present available evidence (especially the testimony of Mostaan's and Appellant's accountant) that suggested that the parties regarded Mostaan's payments as rent; and that counsel did not offer as evidence various articles from which Appellant says he learned that kickback schemes are illegal.
With respect to these and all other claimed deficiencies, we do not believe that the district court abused its discretion when it found that Appellant was not deprived of effective assistance of counsel. Appellant's trial counsel testified that he perceived no relation between the February 1989 letter and the alleged kickback scheme and that, even if such a relation did exist, cancelled checks and Mostaan's ledger entries showed that payments continued long after the letter purportedly had been written. Counsel stated that he "very carefully considered" calling witnesses to counter the government investigator's testimony, but chose not to for reasons that he could not disclose without violating the attorney client privilege. Counsel said that he wanted "very badly" to call Mostaan's and Appellant's neighbor, Mali Sinai, as a witness, but that Appellant and Appellant's wife had insisted that she not be dragged into the case. Counsel testified that
II. The Prosecution's Closing Argument
Appellant contends that, during her closing argument, the prosecutor improperly revealed her personal opinions regarding the strength of the evidence and the credibility of the witnesses and improperly speculated about the nature of evidence that had been excluded by the court.
Because Appellant did not object to those statements at the time they were made — a point that both parties concede — we must review only for plain error. United States v. Brewer, 1 F.3d 1430, 1434 (4th Cir.1993). To reverse for plain error, we must find that an error occurred, that the error was plain, that the error affected substantial rights, and that the error "seriously affected the fairness, integrity, or public reputation of the judicial proceedings." Id. at 1434-35 (quoting United States v. Olano, 507 U.S. 725, ___-___, 113 S.Ct. 1770, 1777-79, 123 L.Ed.2d 508 (1993)). Rather than look at isolated statements, the court must review the entire proceedings to see if the misconduct undermined the trial's fundamental fairness. United States v. Mitchell, 1 F.3d 235, 240 (4th Cir.1993).
With respect to claims of prosecutorial misconduct, an appellant must show that the remarks were improper and that they "prejudicially affected the defendant's substantial rights so as to deprive the defendant of a fair trial." Mitchell, 1 F.3d at 240. Several factors are relevant to the determination of prejudice, including
United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir.1983), cert. denied, 466 U.S. 972, 104 S.Ct. 2345, 80 L.Ed.2d 819 (1984).
Under both the plain error and prosecutorial misconduct standards, Appellant's claim fails. Most of the remarks to which he objects merely use the phrase "I think" in an innocuous, conversational sense; they do not suggest an attempt to replace the evidence with the prosecutor's personal judgments. While it might have been preferable had several of the remarks not been made, we do not believe that any of the remarks affected the fundamental fairness and integrity of the proceedings. The comments were isolated, they did not tend to divert the jury's attention to extraneous matters, and they were made at the conclusion of a case in which the proof of guilt was significant.
Appellant also contends that the prosecutor improperly encouraged the jury to speculate about the nature of evidence that the trial judge had ruled inadmissible. During
We do not believe that the prosecutor's remarks were sufficient to deprive Appellant of a fair trial.
III. Sentencing Issues
Medicare fraud carries a maximum sentence of five years' imprisonment. 42 U.S.C. § 1320a-7(b) (1988). Under the 1994 edition of the Federal Sentencing Guidelines, Appellant was assigned a base level of six. The level was then enhanced by five pursuant to Guideline § 2F1.1(b)(1)(F) due to a loss of $50,000. The level was then enhanced by an additional four, two of which were for abuse of a position of trust under Guideline § 3B1.3.
A. Amount of Benefit as Amount of Loss
This court's review of the district court's application of the Guidelines' loss provision must be conducted de novo. United States v. Chatterji, 46 F.3d 1336, 1340 (4th Cir.1995); United States v. Bailey, 975 F.2d 1028, 1030 (4th Cir.1992).
Sentencing Guideline § 2F1.1(b)(1) allows enhancement of a defendant's sentencing range according to the amount of loss suffered as a result of the defendant's conduct. Comment 8 to that provision states that "the loss need not be determined with precision," and that "[t]he offender's gain from committing the fraud is an alternative estimate that ordinarily will underestimate the loss." U.S.S.G. § 2F1.1(b)(1), comment (8).
Appellant bases his argument primarily on Chatterji, in which the Fourth Circuit held that no actual, intended, or probable loss had resulted from the defendant's fraudulent submission of data to the Food and Drug Administration, and that the defendant's gain therefore could not be considered as a substitute measure of loss for purposes of applying Guideline § 2F1.1. The court stated:
Chatterji, 46 F.3d at 1342.
Appellant argues that no losses were suffered as a result of his conduct, and that, under Chatterji, the district court therefore erred when it used his gain as a proxy for losses. The government contends that Chatterji is not controlling here because, as Congress recognized when passing the anti-fraud measures, losses are almost always incurred when welfare fraud occurs: taxpayers must pay higher costs when kickback schemes encourage physicians to provide unnecessary services, and competition is discouraged when a doctor makes more referrals to a single, co-conspiring physician than to physicians with lower rates or better services.
Though it is difficult to determine precisely the amount of the added costs that have been imposed as a result of the acts of a single physician, welfare fraud, taken as a whole, surely does impose enormous, unnecessary financial burdens on the American public. When Congress passed legislation in 1977 designed to stiffen penalties for welfare fraud and to impose several fraud-discouraging requirements on various parties, the House Ways and Means Committee reported:
H.R. 95-393, 95th Cong., 1st Sess., pt. II, at 44 (1977), reprinted in 1977 U.S.C.C.A.N. 3039, 3047.
Guideline § 2F1.1, especially as explained in comment (8), appears designed for just such circumstances: the amount of loss caused by Appellant's conduct cannot be determined with any certainty, but the amount of Appellant's gain is an available, alternative measure of estimating that loss. Moreover, in the instant case, the amount of Appellant's gain seems like a highly appropriate measure of the loss suffered by the American taxpayers, insofar as the dollars paid to Appellant represent dollars that Mostaan apparently did not need to receive from federal funds in order to cover the costs of the care he provided. The dollars paid to Appellant, in other words, are dollars that were needlessly drained from the Medicare system.
We therefore find Chatterji distinguishable and affirm the district court's decision to apply the loss-enhancement provision.
B. Abuse of Position of Trust
We must examine the district court's application of the Guidelines' abuse-of-trust provision only for clear error. United States v. Helton, 953 F.2d 867, 869 (4th Cir.1992).
Sentencing Guideline § 3B1.3 provides that "[i]f the defendant abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense," his or her sentencing range should be enhanced by two levels. The Official Commentary to that provision states that, with the phrase "position of public or private trust," the Guidelines are intended to refer to positions "characterized by professional or managerial discretion (i.e. substantial discretionary judgment that is ordinarily given considerable deference)." U.S.S.G. § 3B1.3, comment (1). Comment (1) also states that "[p]ersons holding such positions ordinarily are subject to significantly less supervision than [other] employees," and that, for the provision to apply, the position must have significantly aided the offender, such as "by making the detection of the offense ... more difficult." Id. The Ninth Circuit has declared, in light of the Official Commentary, that "[t]he primary trait that distinguishes a person in a position of trust is the extent to which the position provides the freedom to commit a difficult-to-detect wrong." United States v. Pascucci, 943 F.2d 1032, 1037 (9th Cir.1991) (quotation omitted). The Fourth Circuit has stated that whether a person holds a position of trust must be determined from the perspective of the victim. United States v. Moore, 29 F.3d 175, 180 (4th Cir.1994).
The position that Appellant enjoyed as a physician making claims for welfare funds is an example of the kind of position that the Official Commentary, Moore, and Pascucci describe. Contrary to Appellant's view, and as we have acknowledged supra, welfare fraud indisputably causes losses. The "victims" are the American taxpayers, who must pay the added costs that such fraud imposes. Moreover, as the House Ways and Means Committee has observed, welfare fraud is terribly difficult to detect because physicians exercise enormous discretion: their judgments with respect to necessary treatments ordinarily receive great deference and it is difficult to prove that those judgments were made for reasons other than the patients' best interests. See H.R. 95-393, 95th Cong., 1st Sess., pt. II, at 44 (1977), reprinted in 1977 U.S.C.C.A.N. 3039, 3050.
We therefore hold that the district court properly enhanced Appellant's sentencing range for abusing a position of trust.
The decision of the district court is accordingly