SUBJECT:

Russell Mark Posner,

Petitioner,

The Inspector General.

DECISION

This matter is before me on the Inspector General's (I.G.'s) Motion for Summary Affirmance of the I.G.'s determination to exclude Petitioner pro se, Russell Mark Posner, from participation in Medicare, Medicaid, and all other federal health care programs for a period of 14 years. The I.G.'s Motion and determination to exclude Petitioner are based on the terms of section 1128(a)(1) of the Social Security Act (Act), 42 U.S.C. � 1320a-7(a)(1). As I shall explain below, the facts in this case mandate the imposition of at least the minimum five-year exclusion, and fully support the reasonableness of the I.G.'s determination to enhance that period of exclusion to 14 years. For those reasons, I grant the I.G.'s Motion for Summary Affirmance.

I. Procedural Background

Until March 4, 2004, Russell Mark Posner was licensed to practice as a chiropractor by the State of Florida. On November 18, 2001, the Federal Grand Jury sitting for the United States District Court for the Southern District of Florida handed up an indictment naming Posner and five others as co-defendants in a 219-count Indictment, charging them with a variety of felonies committed between January 1995 and August 2000. The criminal conduct consisted chiefly of the defrauding and abuse of publicly-funded health care and disability programs, worker-compensation plans, and private insurers, and of criminal activity involving controlled substances. The Indictment also included the crimes of money laundering, racketeering, witness tampering, and a scheme to manipulate and subvert by fraud divorce proceedings in which he was a party. Petitioner was named in all but two of the counts.

Petitioner appeared with counsel in the United States District Court on February 24, 2003 and pleaded guilty to three felony counts of the Indictment. The first allegation to which Petitioner pleaded guilty, Count 2, charged Petitioner with having submitted a false claim to the Medicare program, in violation of 18 U.S.C. � 287. The second allegation to which Petitioner pleaded guilty was Count 181, and it charged Petitioner with a violation of 18 U.S.C. � 371 by having conspired to provide the Social Security Administration with false and incomplete information concerning Petitioner's own status as a disabled person entitled to receive Title II Disability Insurance Benefits. The third allegation to which Petitioner pleaded guilty was Count 219: it charged Petitioner with having engaged with others as their leader in a pattern of racketeering activity from January 1995 through August 2000. The racketeering activity, which formed the predicate for Petitioner's guilty plea to Count 219, included discrete acts of mail fraud conducted over a 37-month period, from March 1997 to April 2000. The racketeering activity violated 18 U.S.C. � 1962(c). Petitioner's guilty pleas were negotiated in return for the dismissal of the remaining 214 counts of the Indictment in which he was named, and a Plea Agreement memorializing the terms on which the pleas were negotiated was filed.

Final adjudication of Petitioner's guilt on the three counts and judgment of his conviction were entered, and a sentence was imposed, on June 24, 2003. Prison terms of 60 months each were imposed as to Counts 2 and 181, and a 63-month term of imprisonment was imposed as to Count 219. All three terms of incarceration were ordered to be served concurrently. Petitioner will be required to serve three years supervised release following the completion of his prison term and to participate in a mental health treatment program as directed by his probation officer during the period of his supervised release. In addition to the payment of a $300 special court assessment, Petitioner was ordered to pay restitution in the sum of $782,187.72.

The State of Florida's Board of Chiropractic Medicine suspended Petitioner's license effective March 4, 2004. The Board's action was explicitly based on his conviction and sentence in United States District Court, and the Board's Final Order adopted language finding that the criminal violations of which Petitioner was convicted were directly related to the practice of chiropractic medicine.

As required by the terms of section 1128(a) of the Act, 42 U.S.C. � 1320a-7(a), the I.G. began the process of excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate the exclusion, for a period of not less than five years, of "[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Title XVIII or any State health care program." On November 30, 2004, the I.G. notified Petitioner that he was to be excluded pursuant to the terms of section 1128(a)(1) of the Act for a period of 14 years.

Acting pro se, Petitioner timely sought review of the I.G.'s action by letter of January 24, 2005.

I convened a prehearing conference by telephone on May 5, 2005, pursuant to 42 C.F.R. � 1005.6, for the purposes of discussing procedural issues with the parties, orally addressing and denying certain requests set out in Petitioner's letters of March 22, 2005 and April 25, 2005, and verifying that Petitioner intended to continue acting pro se. The procedures and schedule established during that conference are set out in my Order of May 10, 2005. As matters developed, however, the procedures and schedule required the amendments noted below.

During the briefing cycle, Petitioner filed two motions. His Motion to Exclude Portions of Indictment was received in the Civil Remedies Division on or about June 24, 2005. It sought that ". . . all charges of the indictment that were dismissed by the Government and not an actual count that the petitioner Russell Posner plead [sic] to be excluded from the record and being [sic] barred from reading by the Honorable Judge Richard A. [sic] Smith." I denied the Motion by Order of July 6, 2005. Petitioner's Demand for Discovery was received by the Civil Remedies Division on or about July 7, 2005. I denied the Demand by Order of July 18, 2005.

Petitioner filed his Sur-Reply brief on August 9, 2005 in compliance with the briefing schedule set out in the Order of May 10, 2005. Although he had stated his reliance on the mitigating factor set out at 42 C.F.R. � 1001.102(c)(2) in his July 11, 2005 Response, Petitioner had not supplied evidence in support of that claim until the filing of his Sur-Reply. Petitioner attached to that pleading a copy of a psychological evaluation of himself dated May 21, 2003. In order to permit a full and informed discussion of Petitioner's pro se claim, my Orders of August 29, 2005 and September 28, 2005 established a supplemental schedule for the submission of any additional documents in support of the claim, and for briefing the specific issues surrounding the mitigating factor of reduced culpability as set out in 42 C.F.R. � 1001.102(c)(2).

The period for submission of additional briefing and documentation allowed by my Order of September 28, 2005 is now closed, in the circumstances set out in my Order Closing Record of December 14, 2005.

The evidentiary record in this case includes seven exhibits. The I.G. has proffered I.G. Exhibits 1-5 (I.G. Exs. 1-5); except as noted in his June 24, 2005 Motion, Petitioner has not objected to them, and they are admitted. The psychological evaluation dated May 21, 2003 was admitted as Petitioner's Exhibit 1 (P. Ex. 1) by my Order of September 28, 2005. As part of his September 8, 2005 Response Petitioner attached a copy of a memorandum dated September 28, 2004, entitled "Provisional Notice of Residential Drug Abuse Program and 3621(E) Eligibility," and designated Petitioner's Exhibit 2 (P. Ex. 2). I admitted it with that designation in my Order of September 28, 2005.

II. Issues

The legal issues before me are limited to those enumerated at 42 C.F.R. � 1001.2007(a)(1). In the specific context of this record, they are:

�Whether the I.G. has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Act; and

�Whether the 14-year length of the period of exclusion is not unreasonable.

The controlling authorities require that both issues be resolved in favor of the I.G.'s position. Section 1128(a)(1) of the Act mandates Petitioner's exclusion since his predicate conviction has been established. A five-year period of exclusion is the minimum period established by section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B). The enhanced period of exclusion is not unreasonable: all three of the aggravating factors relied on by the I.G. to enhance the period are fully established in the record before me, and no mitigating factors have been established. The 14-year period proposed by the I.G. is thus within a reasonable range based on the facts of this case.

III. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), requires the mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any "individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Title XVIII or under any State health care program." Title XVIII of the Act is the Medicare program. The terms of section 1128(a)(1) are restated somewhat more broadly in regulatory language at 42 C.F.R. � 1001.101(a).

The Act defines "conviction" as including those circumstances "when a judgment of conviction has been entered against the individual . . . by a . . . Federal . . . court," Act, section 1128(i)(1); "when there has been a finding of guilt against the individual . . . by a . . . Federal . . . court," Act, section 1128(i)(2); or "when a plea of guilty . . . by the individual . . . has been accepted by a . . . Federal . . . court," Act, section 1128(i)(3). These definitions are repeated at 42 C.F.R. � 1001.2.

An exclusion based on section 1128(a)(1) is mandatory and the I.G. must impose it for a minimum period of five years. Act, section 1128(c)(3)(B); 42 U.S.C. � 1320a-7(c)(3)(B). The regulatory language of 42 C.F.R. � 1001.102(a) affirms the statutory provision. The minimum mandatory period of exclusion is subject to enhancement in some limited circumstances and on proof of carefully-defined aggravating factors set out at 42 C.F.R. �� 1001.102(b)(1)-(9). If the I.G. attempts to enhance the period of exclusion by relying on any of those aggravating factors, a petitioner may attempt to limit or nullify the proposed enhancement through a showing of certain mitigating factors set out at 42 C.F.R. �� 1001.102(c)(1)-(3).

The standard of proof in this case is a preponderance of the evidence. Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. ��1005.15(b), (c).

IV. Findings and Conclusions

I find and conclude as follows:

1. On or about February 24, 2003, in the United States District Court for the Southern District of Florida, Petitioner Russell Mark Posner pleaded guilty to three felony violations of law: a violation of 18 U.S.C. � 287, based on the submission of a false claim to the Medicare program; a violation of 18 U.S.C. � 371, based on conspiracy to defraud the Social Security Administration; and a violation of 18 U.S.C. � 1962(c), based on racketeering activity. I.G. Exs. 1, 2.

2. Final adjudications of guilt, judgments of conviction, and sentencing based on those convictions were imposed on Petitioner in the United States District Court on or about June 24, 2003. I.G. Ex. 3.

3. On November 30, 2004, the I.G. notified Petitioner that he was to be excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of 14 years, based on the authority set out in section 1128(a)(1) of the Act, and on the presence of three aggravating factors set out in 42 C.F.R. �� 1001.102(b)(1), (5), (9).

5. The plea, adjudication of guilt, judgment of conviction, and sentencing based on Petitioner's violation of 18 U.S.C. � 287, as described in Findings 1 and 2 above, constitute a "conviction" related to the delivery of an item or service under the Medicare program, within the meaning of sections 1128(a)(1) and 1128(i)(1)-(3) of the Act, and 42 C.F.R. � 1001.2.

6. By reason of his conviction, Petitioner was subject to, and the I.G. was required to impose, a period of exclusion from Medicare, Medicaid, and all other federal health care programs of not less than five years. Act, sections 1128(a)(1), 1128(c)(3)(B).

7. The acts resulting in Petitioner's convictions based on violations of 18 U.S.C. �� 287 and 1962(c) are "similar acts" within the meaning of 42 C.F.R. � 1001.102(b)(1), and caused financial losses to Government programs and other entities of more than $5,000. I.G. Exs. 1, 2, 3.

8. Because the acts resulting in Petitioner's convictions based on violations of 18 U.S.C. �� 287 and 1962(c) caused financial losses to Government programs and other entities of more than $5,000, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(1) is present.

9. As the result of his convictions, Petitioner was sentenced to incarceration for two terms of 60 months for the violations of 18 U.S.C. �� 287 and 371, and one term of 63 months for the violation of 18 U.S.C. � 1962(c), to be served concurrently. I.G. Ex. 3.

10. Because Petitioner was sentenced to a term of incarceration, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(5) is present.

11. As a consequence of the same set of circumstances that served as the basis for the conviction and exclusion described above, Petitioner has been the subject of an adverse action by the State of Florida Board of Chiropractic Medicine, effective March 4, 2004. I.G. Exs. 4, 5.

12. Because Petitioner has been the subject of an adverse action by the state medical licensing authority based on the same set of circumstances that served as the basis for the conviction and exclusion described above, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(9) is present.

13. None of the mitigating factors set out in 42 C.F.R. � 1001.102(c)(1)-(3) are present. P. Exs. 1, 2.

14. The I.G.'s exclusion of Petitioner for a period of 14 years is supported by fact and law, is within a reasonable range, and is therefore not unreasonable. I.G. Exs. 1, 3, 4; Findings 1-13, above.

15. There are no disputed issues of material fact and summary affirmance is appropriate in this matter. Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Thelma Walley, DAB No. 1367 (1992).

V. Discussion

The essential elements necessary to support an exclusion based on section 1128(a)(1) of the Act are: (1) the individual to be excluded must have been convicted of a criminal offense; and (2) the criminal offense must have been related to the delivery of an item or service under Title XVIII of the Act (Medicare) or any state health care program. Thelma Walley, DAB No. 1367; Boris Lipovsky, M.D., DAB No. 1363 (1992); Lyle Kai, R.Ph., DAB CR1262 (2004), rev'd on other grounds, Lyle Kai, R.Ph., DAB No. 1979 (2005). Those two essential elements are fully demonstrated in the evidence before me, and their demonstration encounters no material contradiction in the arguments Petitioner raises in opposition to the I.G.'s proposed action.

Petitioner's conviction is shown by I.G. Exs. 2 and 3: his guilty pleas were negotiated in terms set out in writing, were tendered and accepted on or about February 24, 2003, and the trial court found him guilty on or about that date, in accordance with the definitions of "conviction" set out at sections 1128(i)(2) and (3) of the Act. The judgment of conviction entered against him on June 24, 2003 satisfies the definition of "conviction" set out at section 1128(i)(1) of the Act. The I.G. has proved the first essential element.

The language of Count 2 charges that Petitioner submitted a $215 claim for medical and chiropractic service to the Medicare program on February 3, 1998, knowing the claim to be false. I.G. Ex. 1, at 10-11, para. 42. The submission of false claims to the Medicare or Medicaid programs has been consistently held to be a program-related crime within the reach of section 1128(a)(1). Jack W. Greene, DAB No. 1078 (1989), aff'd sub nom. Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990); Kennard C. Kobrin, DAB CR1213 (2004); Norman Imperial, DAB CR833 (2001); Egbert Aung Kyang Tan, M.D., DAB CR798 (2001); Mark Zweig, M.D., DAB CR563 (1999); Alan J. Chernick, D.D.S., DAB CR434 (1996). Thus, while I find the required nexus and common-sense connection between the criminal act and the program present here as a matter of fact, Berton Siegel, D.O., DAB No. 1467 (1994), I believe that Petitioner's conviction for violating 18 U.S.C. � 287 is a program-related crime as a matter of law. The I.G. has proved the second essential element.

It is important to note, however, that although Petitioner was convicted on his guilty pleas to all three felony counts, only one of those counts forms the basis for my finding that Petitioner stands convicted of a crime related to the delivery of an item or service under the Medicare program. Petitioner's conviction based on 18 U.S.C. � 287, as charged in Count 2 of the Indictment, arises from conduct obviously "related to" the Medicare program. I need not reach the question of whether the crime of conspiring to defraud the Social Security Administration in the manner Petitioner admitted in Count 181, or whether the individual acts of racketeering Petitioner admitted in Count 219, bear a similar relationship to a protected health care program.

The two elements essential to the basic exclusion are not, as I have noted, the points on which Petitioner rests his opposition to the I.G.'s action. He concedes his conviction for violating 18 U.S.C. � 287, but objects to the I.G.'s use of three aggravating factors to enhance the mandatory minimum five-year period to a period of 14 years. As I shall point out, however, the factual existence of each of the three aggravating factors is fully established in the evidence before me, and Petitioner's arguments as to their non-applicability are without merit.

Two of the aggravating factors may be discussed in a very few words. Petitioner was sentenced to three concurrent prison terms and is serving those terms now. I.G. Ex. 3; P. Ex. 2. The aggravating factor defined at 42 C.F.R. � 1001.102(b)(5) is present when "[t]he sentence imposed by the court included incarceration." It is present here. As will be seen infra, the prison sentence and this aggravating factor are in no way affected or attenuated by the holding in United States v. Booker, 543 U.S. 220 (2005). The aggravating factor set out at 42 C.F.R. � 1001.102(b)(9) is present when a convicted individual ". . . .has been the subject of any other adverse action by any . . . local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion." The State of Florida's Board of Chiropractic Medicine suspended Petitioner's license effective March 4, 2004. The Board's action was explicitly based on his conviction and sentence in United States District Court. I.G. Exs. 4, 5. The "other adverse action" aggravating factor is present here. The I.G. properly invoked them both.

Petitioner vigorously asserts that the use of the adverse license proceedings and his term of incarceration as aggravating factors is constitutionally objectionable, relying on the prohibitions against "double jeopardy" set out in amendment V of the United States Constitution. The settled authority of this forum places constitutional claims beyond my jurisdiction, but the point has nevertheless attracted thoughtful and probing analyses of the constitutional soundness of the exclusion process over many years. When the constitutionality of the exclusion process has been weighed by a forum authorized to do so, it has without exception been sustained. Manocchio v. Kusserow, 961 F.2d 1539 (11^th Cir. 1992); Greene v. Sullivan, 731 F.Supp. 835 (E.D. Tenn. 1990). The Departmental Appeals Board (Board) has discussed the issue as well: while acknowledging that it lacks jurisdiction to decide such questions, it has carefully analyzed the "double jeopardy" issue and endorsed the soundness of the exclusion process in general. Brij Mittal, M.D., DAB No. 1894 (2003); Susan Malady, R.N., DAB No. 1816 (2002); Douglas L. Reece, D.O., DAB No. 1448 (1993); Larry White, R.Ph., DAB No. 1346 (1992). The application of aggravating factors to the period of exclusion, as distinct from the general exclusion process itself, was approved after "double jeopardy" analysis in Joann Fletcher Cash, DAB No. 1725 (2000). Thus, to the extent that I am authorized to evaluate them in the constitutional sense, I need not hesitate to declare Petitioner's "double jeopardy" argument entirely meritless. The two aggravating factors have been proven and there is no bar to the I.G.'s use of them here.

The third aggravating factor requires a more expanded discussion. That third factor is the "amount of loss" factor, which permits the I.G. to enhance a period of exclusion upon a showing of financial loss to a Government program or other entities of more than $5,000. 42 C.F.R. � 1001.102(b)(1). Petitioner is categorical in contending that he caused no cognizable financial loss beyond the one he admitted in Count 2, the amount of which was well below the regulation's threshold.

When the I.G. informed Petitioner of his exclusion on November 30, 2004, the I.G. asserted that the aggravating factor set out at 42 C.F.R. � 1001.102(b)(1) was present. The I.G. asserted that Petitioner had been ordered to pay restitution in the amount of $22,666. The basis for the I.G.'s calculation of this amount is not clear, but Petitioner has from the outset of this litigation challenged the I.G. on a more basic level by flatly denying that his conduct caused a loss of more than "a total amount of $215." P. Response at 1. While Petitioner is entirely correct in noting that his plea of guilty to Count 2 established this amount as the only loss directly linked to an admitted violation of 18 U.S.C. � 287, he fails to acknowledge that the regulation permits the I.G. - and me - to consider "similar acts" in determining the amount of loss. The factor is present on a showing that:

(1) The acts resulting in the conviction, or similar acts, that caused, or were intended to cause, a financial loss to a Government program or to one or more entities of $5,000 or more.

42 C.F.R. � 1001.102(b)(1).

The entirety of Petitioner's pleadings in this case may be reviewed without discovering the frank concession that he pleaded guilty not simply to Count 2 of the Indictment, but to Counts 181 and 219 as well. His effort to narrow the focus of this discussion may be understandable, but it does not square with the truth of what happened in United States District Court. The criminal proceedings against Petitioner resulted in his conviction of a variety of crimes, all linked together so as to be obviously "similar acts," and all establishing financial loss far greater than $5,000 and far greater than the amount specified by the I.G. The crimes, the amounts of loss, and the links binding them together as "similar acts" all appear in the District Court records. I.G. Exs. 1, 2, 3. This comprehensive reading of the District Court records is specifically approved in Brij Mittal, M.D., DAB No. 1894, and Donald A. Burstein, Ph.D., DAB No. 1865 (2003).

To begin with, there is a wealth of insight to be gained through a close reading of the Plea Agreement Petitioner and his attorney signed on February 21, 2003. I.G. Ex. 2. For example, paragraph 8(a) of the Agreement conceded that the "actual, probable or intended loss under Section 2F1.1(b)(1) of the Sentencing Guidelines resulting from the offenses committed in this case is more than $500,000, but not more than $800,000." I.G. Ex. 2, at 3, para. 8(a). Petitioner acknowledged his understanding that restitution was required to be part of his sentence, just as it eventually was ordered to be in the sum of $782,187.72. I.G. Ex. 2, at 2, para. 5; I.G. Ex. 3, at 5. Were it necessary to rely solely on this adjudicated amount of restitution as at least a prima facie estimate of loss, the settled precedent of this forum would support that reliance. Dr. Darren J. James, D.P.M., DAB CR860 (2002); Ruth Ferguson, DAB CR725 (2000); Steven Alonzo Henry, M.D., DAB CR638 (2000); Thomas P. Whitfield, D.P.M., DAB CR539 (1998); Gilbert Ross, M.D., et al., DAB CR478 (1997). To be sure, any such reliance might be tempered somewhat by the Agreement's language "probable or intended" and the Board's holding in John E. Calhoon, DAB No. 1729 (2000). But, as will be seen presently, it is not necessary here to estimate the total amount of loss caused by Petitioner's crimes, for he has admitted at least one total amount with remarkable precision, and that amount satisfies the requirement of 42 C.F.R. � 1001.102(b)(1) more than sevenfold.

The real value of the Plea Agreement emerges, however, when it is read in concert with the language of Counts 2, 181, and 219 of the Indictment. Together they provide a simple, but quite precise, statement of what Petitioner admitted having done and when, and of the exact amount of losses he admitted having caused. To repeat: I believe that this comprehensive reading of the record is authorized by Brij Mittal, M.D., DAB No. 1894, and Donald A. Burstein, Ph.D., DAB No. 1865.

The body of Count 2 of the Indictment begins on its ninth page, with numbered paragraph 41. I.G. Ex. 1, at 10. That paragraph realleges and incorporates into Count 2 all of the allegations set out in the Indictment's paragraphs 1-7, 9-29, and 31-39. It is from those numbered paragraphs that the relationship of Petitioner to the unindicted co-conspirators Swilling and Strickman, and his professional connection to Sunstate Doctors Center and Sunstate Medical, is established. The incorporated paragraphs show the period of time over which Petitioner's scheme operated, from early 1995 through summer, 2000. The victimization of the Medicare Part B program, the Health Care Financing Administration (HCFA), and at least a dozen insurance carriers is charged and shown in those incorporated paragraphs, and the mechanism of submitting fraudulent HCFA Form 1500 claims is demonstrated in them as well. Those incorporated paragraphs are an integral part of Count 2, and they provide, inter alia, a direct and explicit nexus and common-sense connection between Petitioner's crime and the delivery of an item or service under the Medicare program. Berton Siegel, D.O., DAB No. 1467.

Paragraph 42 of the Indictment sets out the details of Petitioner's submission of false claims charged in Counts 2-11 in tabular form. I.G. Ex. 1, at 11. Only one claim is charged in Count 2, and Petitioner correctly asserts that it is based on a false claim in the amount of $215 submitted on February 3, 1998, near the midpoint of the Indictment's criminal chronology. But the single claim identified in Count 2 is the direct culmination of the conduct charged and admitted in the incorporated paragraphs and, in pleading guilty to Count 2, Petitioner pleaded guilty to all of its allegations, including those in the incorporated paragraphs. Those paragraphs form the foundation of the "similar acts" analysis that follows.

The text of Count 181 of the Indictment begins on its 31^st page, at paragraph 89, and concludes five pages later, with paragraph 105. I.G. Ex. 1, at 32-36. Paragraph 89 realleges and incorporates the Indictment's paragraphs 1-7, precisely as Count 2 did at paragraph 41. Paragraphs 97-103 charge that the conspiracy admitted by Petitioner began on or about January 1997; that the co-conspirators Swilling and Strickman named in paragraphs 2 and 3 conspired with Petitioner against the Social Security Administration as well; that the business entities Sunstate Medical and Sunstate Doctors Center were joined by Millenium Medical of South Florida and Y2K Medical as instrumentalities of the conspiracy; and that the object of the conspiracy was to defraud the Social Security Administration by concealing Petitioner's income and earnings derived from the four business entities.

The record before me does not reveal which - or how many - of the five overt acts identified in paragraph 104 Petitioner admitted in his guilty plea to Count 181. Petitioner is identified as the actor in only three of them, the earliest in April 1998 and the most recent in April 2000. I.G. Ex. 1, at 35, paras. 104(a), (b), (c). Obviously, only one overt act would have been sufficient to establish Petitioner's guilt, since a conspiracy is complete upon the performance of the first overt act intended to effect its object. 18 U.S.C. � 371. But, just as in admitting Count 2, Petitioner admitted all of the incorporated paragraphs 1-7, and all of Count 181's charging paragraphs 89-103 and 105, in pleading guilty to Count 181.

No dollar figures appear in Count 181 or in the incorporated paragraphs 1-7, and thus it cannot be determined on this record exactly how much money Petitioner's dishonesty cost the Social Security Administration. Accordingly, I do not consider any such unliquidated losses in computing the total losses for purposes of 42 C.F.R. � 1001.102(b)(1). Neither do I find it necessary to decide whether Petitioner's conspiracy to defraud that program involves the delivery of an item or service under a protected health care program. What I do find instructive in the admitted facts of Count 181 are the manifold functional links among the persons and business entities involved in Counts 2 and 181, the common geographical venue of their acts, the temporal continuity of the entire activity, and the overarching quality of avaricious mendacity by which it is marked. Counts 2 and 181 show Petitioner and his cohorts using the same business entities to conduct and execute like schemes to defraud the same sorts of victims over a lengthy common period and in a limited common area. They evince a common plan, scheme, and design, display congruent planning and execution, and utterly rule out the possibility of mistake or accident. See FED. R. CRIM. P. 404(b). They are certainly "similar acts" within the meaning of 42 C.F.R. � 1001.102(b)(1).

Of all three counts, however, Count 219 is most illuminated by the Plea Agreement and, consequently, shows the most about the financial losses Petitioner caused and admitted. Count 219 is found on the Indictment's pages 55-57. I.G. Ex. 1, at 56-58, paras. 175-179. The 16 specific acts of racketeering on which that Count is based are listed in tabular form on page 57. I.G. Ex. 1, at 58. Each of the 16 individual acts of racketeering incorporates the actual felonious conduct charged in one or more of the Indictment's other substantive counts, and alleges a period of time over which that felonious conduct took place. ⁽¹⁾ For example, Racketeering Act 1 is charged as the mail fraud scheme Petitioner conducted through Sunstate Doctors Center and Sunstate Medical between December 8, 1998 and April 28, 2000, as detailed in Counts 12-37 of the Indictment. I.G. Ex. 1, at 58.

When Petitioner negotiated the details of the Plea Agreement, he agreed to exactly how many and precisely which racketeering acts his guilty plea encompassed. That agreement is set out as the second substantive topic negotiated:

2. The United States and the defendant agree that the pattern of racketeering activities which formed the predicate for the defendant's guilt as to count 219 are racketeering acts 1, 2, 12, and 13, as alleged in the indictment.

I.G. Ex. 1, at 1, para. 2.

The table of racketeering acts in Count 219 shows that Racketeering Act 1 included the mail fraud offenses charged in Counts 12-37, as in the example given just above, perpetrated through Sunstate Doctors Center and Sunstate Medical between December 8, 1998 and April 28, 2000. Racketeering Act 2 included the mail fraud offenses Petitioner committed through Millenium Medical and Y2K Medical between October 14, 1998 and November 19, 1999, as charged in Counts 38-50. Racketeering Act 12 included the crimes of mail fraud Petitioner committed with the co-defendant Waxman between March 12, 1997 and November 1, 1997, as charged in Counts 201, 202, 203, and 205. Racketeering Act 13 included the felonies of wire and mail fraud perpetrated by Petitioner and the co-defendant Olds between October 15, 1998 and February 4, 1999, as charged in Counts 209, 212, and 213. I.G. Ex. 1, at 58.

And what were the details of those individual charges? The following paragraphs array them in summary form. The individual counts may be reviewed as well, and such an exercise will also reveal the almost classical unities of time, place, action, and actors that establish them as "similar acts," and their amounts as subject to aggregation for purposes of 42 C.F.R. � 1001.102(b)(1). Together they form a common matrix of criminality, and they link all of the activities identified or incorporated in Count 219 to the activities identified and incorporated in Counts 2 and 181.

The mail fraud activities Petitioner admitted as Racketeering Act 1 encompassed his separate mailing of 26 HCFA Forms 1500 to private insurers between December 8, 1998 and April 28, 2000. Those HCFA Forms 1500 represented his claims for medical services that were either unnecessary or not rendered as claimed, and the total admitted amount of those false claims was $8,161.50. I.G. Ex. 1, at 13-14.

The mail fraud activities Petitioner admitted as Racketeering Act 2 were his separate mailings of 13 HCFA Forms 1500 to private insurers between October 14, 1998 and November 19, 1999. These mailings were in furtherance of Petitioner's scheme to "broker" patients and "pad" MRI fees illegally, and the total admitted amount of these illegal claims was $29,975. I.G. Ex. 1, at 19.

Racketeering Act 12 was based on four mailings, effected between March 12, 1997 and November 1, 1997, by Petitioner and the co-defendant Waxman as part of a scheme to swindle the Florida workers' compensation plan into paying Waxman insurance benefits to which he was not entitled. No amount of loss was specified in connection with Racketeering Act 12. I.G. Ex. 1, at 49-50.

Racketeering Act 13 was based on two mailings and a FAX transmission, sent between October 15, 1998 and February 4, 1999, by Petitioner and the co-defendant Olds as part of a scheme to defraud a private insurer into paying Olds insurance benefits to which he was not entitled. No amount of loss was specified in Racketeering Act 13. I.G. Ex. 1, at 53-54.

It is thus possible to calculate the amount of losses directly related to acts admitted by Petitioner. The loss in Count 2 was $215. The loss in Count 219, based on Racketeering Act 1, was $8,151.50. The loss in Count 219, based on Racketeering Act 2, was $29,975. Those identified losses total $38,351.50, an amount substantially greater than the $22,666 relied on by the I.G. in invoking the "amount of loss" factor, and more than seven times the amount needed to satisfy that factor's threshold. 42 C.F.R. � 1001.102(b)(1). The "amount of loss" aggravating factor is present, and the I.G. properly invoked it.

Petitioner asserts that he was dependent upon and under the influence of various drugs when he committed his crimes and is therefore entitled to claim benefit of the mitigating factor set out at 42 C.F.R. � 1001.102(c)(2). In support of his claim, Petitioner relies on two exhibits: P. Ex. 1, a two-page psychiatric evaluation dated May 21, 2003 presumably submitted to the District Court official in charge of preparing Petitioner's presentence report; and P. Ex. 2, a two-page document in checklist format entitled "Provisional Notice of Residential Drug Abuse Program and 3621(E) Eligibility," dated September 28, 2004. Petitioner's claim to the benefit of this mitigating factor deserves another somewhat-expanded discussion.

The mitigating factor Petitioner claims is set out in the following language, after the regulation's admonition at 42 C.F.R. � 1001.102 (c) that "[o]nly the following factors may be considered mitigating -":

(2) The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual's culpability . . . .

42 C.F.R. � 1001.102(c)(2).

As to this and all other mitigating factors, ". . . Petitioner ha[s] the burden of proving any mitigating factors by a preponderance of the evidence, since the mitigating factor is in the nature of an affirmative defense." Barry D. Garfinkel, M.D., DAB No. 1572 (1996). This allocation of the burden of proof is fully consistent with the exclusion regulations and recent Board pronouncements. 42 C.F.R. � 1005.15(b)(1); Stacey R. Gale, DAB No. 1941 (2004); see also, Dr. Darren James, D.P.M., DAB No. 1828 (2002), at 7-8. Thus, it is Petitioner's responsibility to locate and present evidence to substantiate the existence of any alleged mitigating factor in his case. As that principle applies in the specific context of this case, in alleging the existence of the factor at 42 C.F.R. � 1001.102(c)(2), Petitioner must demonstrate, in the record of this criminal conviction, that the sentencing "court determined" that he had a drug-abuse-related condition before or during the commission of the offenses set out in Counts 2, 181, and 219 of the Indictment, and that the "court determined" that the condition reduced his culpability for the offenses. The I.G. has neither the responsibility nor the obligation to prove the nonexistence of the mitigating factor under the regulation. For example, the I.G. does not have the responsibility of proving that, even though Petitioner may have been at some time addicted to or dependent on drugs, a state of addiction or dependence did not result in a state of reduced culpability on his part at relevant times. It is entirely Petitioner's burden to demonstrate that the judge who sentenced him determined that his culpability , for the crimes of which he stands convicted, was reduced by that condition during or before his commission of the crimes. ⁽²⁾

The regulation plainly requires that proof of any "reduced culpability" claim must be found in records connected to the criminal proceeding, and must address the cognitive or volitional capacities of a petitioner before or at the time of the criminal conduct. A plea of "reduced capacity" based simply on drug addiction and its treatment, without more, will not succeed. Those conditions are not in themselves mitigating factors under the regulation. Dr. Frank R. Pennington, M.D., DAB No. 1786 (2001).

The sources, kind, and quantity of proof that can succeed have been addressed by the Board in three illuminating cases, and those three cases control the disposition of Petitioner's claim here. The first case is Dr. Frank R. Pennington, M.D., DAB No. 1786, which may perhaps be understood as one pole on the continuum of the Board's developing position. The Board's language in Pennington was unadorned:

Under 42 C.F.R. � 1001.102(c)(2), the criminal proceedings record must show that the criminal court determined that a mental, emotional or physical condition reduced culpability for the crime before mitigation is found.

Dr. Frank R. Pennington, M.D., DAB No. 1786, at 6.

That language may have given the impression that the requisite determinations must be made by the sentencing court in ipsissima verba; however, the Board dispelled any such impression just over a year later in Joseph M. Rukse, Jr., R.Ph., DAB No. 1851 (2002). That case came to the Board after an administrative law judge (ALJ) had found the requirements of 42 C.F.R. � 1001.102(c)(2) satisfied by uncorroborated assertions of Rukse's addiction to cough medicine, and by inferences drawn from the sentencing court's imposition of a relatively mild sentence. Joseph M. Rukse, Jr., R.Ph., DAB CR904 (2002). The Board found that such evidence insufficiently linked to Rukse's culpability at the time of his offense, found the inferences drawn from the sentence itself "not reasonable," and set aside the ALJ's conclusion that the mitigating factor had been established. Moreover, the Board made it clear that the sentencing court's determination, that Rukse should participate in a drug-abuse treatment program as part of his sentence, had no bearing at all, in and of itself, on any view the court held about Rukse's condition and culpability at the time of his offense. But for present purposes, the critical language in Rukse is the Board's characterization of where evidence of a sentencing court's view might be found, and what form it might take:

We agree with the ALJ that it was not necessary for the record in the criminal proceedings to contain "specific findings" that Petitioner had a substance abuse condition at the time of the offense and that the condition reduced his culpability. The I.G. acknowledged in its appeal that an ALJ might be able to reasonably infer from a court record that the judge had made the determinations required by the regulation, even if the judge did not make a finding using the precise terms of the federal regulation.

Joseph M. Rukse, Jr., R.Ph., DAB No. 1851.

Thus, the Board appeared to fashion a clear but flexible two-part rule: first, in order for the mitigating factor based on a substance abuse condition to be established, a petitioner must locate and present to the ALJ evidence drawn from the record of the criminal proceedings sufficient to support reasonable inferences that the sentencing judge determined that a petitioner had a substance abuse condition before or during the commission of the offense involved; and second, that the sentencing judge determined that the petitioner's culpability for the offense was reduced by the effects of the substance abuse.

If Rukse was to be the rule, however, following it has not been without difficulties. In Arthur Carl Haspel, D.P.M., DAB CR1149 (2004), the ALJ relied on Rukse and found that although Haspel demonstrated that he was afflicted with an addiction, he had demonstrated neither the nexus in time between his addiction and his crimes nor the sentencing court's determination that the addiction had placed Haspel in a state of reduced culpability at the time of the offenses. In reviewing and reversing the ALJ's findings and conclusions on that point, the Board wrote:

We agree with Petitioner that it is unreasonable to apply the regulation by requiring an explicit finding by the presiding judge in cases where the judge would not need to make an explicit finding for purposes of the sentencing proceeding itself. In those instances, it is sufficient to review the sentencing record as a whole and determine whether it would be reasonable to infer from the entire record that the presiding judge had made the determinations required by the regulation as part of the sentencing process.

Arthur C. Haspel, D.P.M., DAB No. 1929, at 3.

Haspel had placed before the ALJ and Board the transcript of his sentencing proceeding, which included testimony of one expert witness, a statement in allocution from Haspel given under oath, and argument from his lawyer. The Board found in that transcript "several factors in the record that support the reasonable inference that the presiding judge had made the required determinations." As the Board identified them, they were:

The primary focus of Petitioner's own statement to the judge, as well as the unrebutted testimony of his single witness, and the arguments to the court from his attorney (who had known Petitioner for 25 years) was the impact of Petitioner's addiction to drugs on his life both before and during the commission of the offenses. P. Ex. 2, at 16-21. The record also details the extensive and time-consuming efforts Petitioner took to rehabilitate himself from that addiction after his arrest. Id. at 7-10. The record is replete with details of the multiple negative effects of his addiction on his life and of his resulting impaired and confused mental state at the time he was committing the two counts of offenses with which he was charged. Id. at 16-21. The judge initially advised Petitioner that the maximum sentence was five years on each of the two counts, a fine of up to $250,000, and a term of supervised release of at least two years up to life. Id. at 3. The judge, however, clearly found that Petitioner was entitled to leniency since he sentenced him to only three months of home confinement and five years of supervised release and imposed no fine whatsoever. Id. at 22-26.

Arthur C. Haspel, D.P.M., DAB No. 1929, at 3-4.

Taking these factors precisely as the Board characterized them, certain of their features emerge as salient. First is the obvious feature: the transcript proffered by Haspel as part of his evidentiary burden under Garfinkel, James and Gale served as the Board's source for the previously discussed factors. The next feature is the Board's reliance on the testimony of Haspel's "single witness," who was in fact an addiction expert and the medical director of Haspel's post-arrest treatment program, as sufficient to have convinced the sentencing court of the effects of Haspel's addiction during periods "both before and during the commission of the offenses." The third salient feature is the Board's omission to discuss its explicit discounting in Rukse and Pennington of evidence of post-hoc addiction and treatment as reliable indicators of culpability at times relevant to the predicate offenses. The fourth salient feature is the Board's detection in that transcript of other reliable and non-self-serving evidence sufficient to have convinced the sentencing court of the "multiple negative effects" of Haspel's addiction on his life and of his resultant "impaired and confused mental state at the time he was committing the two counts of offenses with which he was charged." Fifth is the Board's salient willingness to interpret a minimal sentence as the sentencing court's tacit expression of its positive determination that an operant link existed between Haspel's condition, his offenses, and his diminished responsibility for them . And the sixth salient feature is the Board's finding that the sentencing judge "would not need to make an explicit finding for purposes of the sentencing proceeding itself." ⁽³⁾

These salient features are the kernel of the Board's present rule for the assessment of the "reduced culpability" mitigating factor set out at 42 C.F.R. � 1001.102(c)(2). The Board's Haspel rule, which I set out here, represents the pole at the far end of the continuum from Pennington, and it is the rule I shall apply in the discussion that follows:

It is possible that the presiding judge considered factors in addition to the addiction in setting such a lenient sentence, including the fact that Petitioner was pleading guilty to the charged offenses. ⁽⁴⁾ Given the testimony presented and the extent of the sentence reduction, however, it is not reasonable to infer from this record as a whole that the judge did not determine that Petitioner's addiction reduced his culpability for the offenses. Moreover, it would be an unreasonable application of the regulatory requirements at issue to have required the sentencing judge to have made these determinations explicitly in the transcript of the sentencing proceedings under the particular circumstances here where no such determinations were required by the sentencing process itself.

Arthur C. Haspel, D.P.M., DAB No. 1929, at 4.

At the outset, it may be important to delineate the items of evidence in this case making up "the sentencing record as a whole," and those making up "the entire record," for they are not the same. The sentencing record as a whole in this case is made up of four exhibits: I.G. Ex. 3, the District Court's Judgment in a Criminal Case; I.G. Ex. 2, the Plea Agreement; I.G. Ex. 1, the Indictment; and P. Ex. 1, Petitioner's May 21, 2003 presentence evaluation prepared for sentencing purposes. I.G. Exs. 1 and 2 are included in the sentencing record because they provide the foundation necessary to understand I.G. Ex. 3. The four exhibits, making up the sentencing record as a whole, do not include transcripts of plea or sentencing hearings, a full presentence report, or Rule 32(h) Notice, required by 18 U.S.C. � 3553(b) and FED. R. CRIM. P. 32(h) in federal prosecutions when a sentencing judge proposed to impose a sentence less severe than the established guidelines might otherwise require.

P. Ex. 2 is not part of "the sentencing record as a whole," since it was prepared 15 months after sentence had been imposed, at a time when Petitioner had begun his term of penal custody. It is, however, part of the "entire record" in this case, as are I.G. Exs. 1-5, and P. Ex. 1. I have examined all seven of the exhibits specifically for anything that might clarify or amplify the information set out in P. Ex. 1.

I cannot speculate on why the sentencing record as a whole contains no transcripts and no presentence report, but it is perfectly clear why there is no Rule 32(h) Notice. No such Notice was necessary because Petitioner had agreed that the sentencing guidelines would apply and that he would be sentenced according to them. I.G. Ex. 2, at 2. He also agreed to an interpretation of those guidelines that would place the length of his prison term at between 51 and 63 months. I.G. Ex. 2, at 4. And rather than departing from that range in the direction of lenity, the sentencing judge chose to impose a sentence at the severest extreme of that agreed range, the full 63 months.

The sentencing court's imposition of the longest prison term it had the option within the guidelines to impose is the most striking difference between Petitioner's situation and the Board's analysis in Haspel, where the Board believed that the sentencing judge "clearly found that Petitioner was entitled to leniency since he sentenced him to only three months of home confinement and five years of supervised release and imposed no fine whatsoever." No such entitlement to lenity based on Petitioner's reduced culpability can be read into the sentence imposed in this case, nor into the absence of a fine, since Petitioner was ordered to pay $782,187.72 restitution, an amount slightly greater than the potential total of the fines for which he was liable on the three convictions. I.G. Ex. 2, at 2, para. 5. In Petitioner's sentence lies the fundamental difference between the sentencing record in this case and the sentencing record on which the Board built Haspel. There, the Board observed a very mild sentence and sifted the sentencing record for reasons by which its mildness could be explained. Here, the sentence imposed was as stringent as it could have been. To explain that stringency, this sentencing record is best searched for the points at which this Petitioner failed to show what the Board believed Haspel had shown.

An inspection shows that this sentencing record as a whole is far indeed from being "replete with details" of Petitioner's "impaired and confused mental state" between March 1997 and April 2000, or even between January 1995 and August 2000. The very paucity of such detail makes it far more than unreasonable to infer that the District Court might have reached a determination of reduced culpability. That inference is an impossibility, for there appears no evidence whatsoever that I can understand as having urged such a determination on the District Court. The only evidence in the sentencing record that addresses Petitioner's drug addiction is the presentence evaluation dated May 21, 2003. P. Ex 1. The first reference to the beginning and duration of his drug addiction takes this form, recording the information given by Petitioner to the examiner as part of his medical history:

Dr. Posner has a long history of drug abuse/dependency, in addition to a history of compulsive gambling (Gambling Addiction). His history of addiction to drugs dates back some twenty five to thirty years, when Dr. Posner used cannabis extensively, in addition to Placidyl, barbiturates, and Quaaludes. He later became addicted to opiates after being diagnosed with Rheumatoid Arthritis. He also used benzodiazepine drugs extensively, and later became dependent upon stimulants such as Phentermine, initially in attempts to lose weight.

P. Ex. 1, at 1.

The second page of the report contains an additional reference to Petitioner's drug use in a temporal context:

His practice is said to be successful, as he continued to use alcohol and drugs extensively. He stopped his individual practice in 1986 when he became disabled, and in 1997 worked with a group of physicians doing billing and community outreach.

P. Ex. 1, at 2.

These statements lack contemporary corroboration outside the report itself: virtually all of them are the reflection of Petitioner's statements to the examiner, and every one of them stops well short of providing details of the reported addiction, its virulence during the specific period here at issue, and most significantly, of the "impact of Petitioner's addiction to drugs on his life both before and during the commission of the offenses." Insofar as it may shed light on those things, the second excerpt from P. Ex. 1 quoted above is hardly indicative of Petitioner's "impaired and confused mental state at the time he was committing" his crimes.

The presentence evaluation may be significant for another reason as well. If Petitioner asserts here that it signaled his reduced culpability to the sentencing court, then he must concede that the Plea Agreement signaled other contradictory things: his role as leader and organizer of criminal activity involving five others, the fact that his criminal activity involved "more than minimal planning," and extended to the obstruction of justice, and that he did "not qualify for an adjustment for acceptance of responsibility . . . ." I.G. Ex. 2, at 3-4, paras. 8(b)-(e). The sentence eventually imposed can reasonably be interpreted as the result of the trial court's weighing of P. Ex. 1 against, inter alia, I.G. Ex. 2, with a result that speaks for itself.

But the Board's Haspel rule employs language, quoted above, suggesting that not only "the sentencing record as a whole," but the "entire record" may be examined for indications that the sentencing court reached a determination of reduced culpability. The entire record before me contains I.G. Exs. 4 and 5, but they have nothing to add on the subject of Petitioner's drug use. The entire record also contains P. Ex. 2, a document dated September 28, 2004. That date is more than four years after the last crime Petitioner admitted, and it reflects nothing more than his eligibility for an inmate drug abuse program, based on a documented qualifying diagnosis. Petitioner's participation in such a program had been recommended by the sentencing court. I.G. Ex. 3, at 2. It will be recalled that such a showing of post hoc addiction and treatment failed to impress the Board in Dr. Frank R. Pennington, M.D., DAB No. 1786, or in Joseph M. Rukse, Jr., R.Ph., DAB No. 1851. And it likewise will be observed that it is rather different in timing and setting from "the extensive and time-consuming efforts Petitioner took to rehabilitate himself" noted with approbation by the Board in Haspel.

How does the evidence before me in this case compare with the salient features I have noted in the Board's Haspel analysis? On the first point, Petitioner remains obliged to produce the evidence from which I might infer a determination of reduced culpability, and he has provided only P. Ex.1 and P. Ex 2. Next, nothing in P. Ex. 1 and P. Ex. 2, nor in I.G. Exs.1-5, compares in weight or relevance to the expert medical testimony before the Board in Haspel: where Haspel produced expert evidence directly related to the details of his addiction and state of mind at the time of his crimes, Petitioner has produced nothing. Third, it seems unlikely that the Board in Haspel intended to vitiate entirely its explicit holdings in Rukse and Pennington that evidence of post hoc addiction and treatment, without more, cannot establish the reduced-culpability mitigator; if my view is correct, then P. Ex. 2 proves nothing in this context. Fourth, there is a substantial qualitative difference and quantitative imbalance between the other reliable evidence the Board was able to decoct from the whole record before it in Haspel and what I have before me: all of the evidence, except P. Ex. 1, can have argued only Petitioner's undiluted culpability to the sentencing court. The effect of P. Ex. 1 on that other evidence can fairly be described as little more than nothing. Fifth, while the Board in Haspel saw the extremely light sentence before it as requiring an inference that the sentencing court had made a determination of reduced culpability, this record displays a stern sentence and permits no such inference. And finally, it is quite apparent that if the sentencing court in these proceedings had intended to depart downward from sentencing guidelines because it believed Petitioner's addiction had reduced his culpability for his crimes, it would have been obliged to file a Rule 32(h) Notice. This case is thus distinguished from Haspel, where the Board understood the record to require no such Notice or its equivalent.

Summarized, the evaluation of this record according to the salient features of the Board's Haspel rule shows this: there is no lenient sentence from which a determination of Petitioner's reduced culpability can reasonably be inferred; and, to the very limited extent that it is now my business to say so, there was no evidence before the sentencing court and shown to me which could now be reasonably understood to have supported any such hypothetical determination. There is nothing from which I can remotely infer that the sentencing court reached a determination of reduced culpability for the reasons specified at 42 C.F.R. � 1001.102(c)(2), and I find that Petitioner has failed to establish that mitigating factor in this case.

The I.G.'s discretion in weighing the importance of aggravating and mitigating factors in exclusion cases commands great deference when ALJs review it. The wellspring of the doctrine of deference is historical and derives from the belief of the regulations' authors that the I.G. is invested with "vast experience in implementing exclusions . . . ." 57 Fed. Reg. 3298-3321 (January 29, 1992). The doctrine evolved as a concept central to exclusion cases in such Board decisions as Barry D. Garfinkel, M.D., DAB No. 1572, Frank A. DeLia, D.O., DAB No. 1620 (1997), and Gerald A. Snider, M.D., DAB No. 1637 (1997). With the Board's decisions in Joann Fletcher Cash, DAB No. 1725, Stacy Ann Battle, D.D.S., et al., DAB No. 1843 (2002), Keith Michael Everman, D.C., DAB No. 1880 (2003), and Jeremy Robinson, DAB No. 1905 (2004), this doctrine of deference to the I.G.'s assessment of aggravating and mitigating factors took its present form.

Stated in its essentials, the doctrine teaches that the ALJ must not substitute her or his own view of what period might appear to be "best" in any given case for the view of the I.G. on the same evidence. No matter which of the recognized aggravating or mitigating factors may have been established by the evidence, in assessing the period of exclusion the ALJ must go no further than the question of reasonableness, and the ALJ's review must reflect the deference accorded to the I.G. by the Secretary's regulation. So long as the length of the exclusion is within a reasonable range and is based on the same listed factors pleaded by the I.G. - demonstrated and proved as pleaded, and without proof of additional listed factors and without failure of proof as to the listed factors relied on by the I.G. - the ALJ must not alter it. ⁽⁵⁾

The function of the factors listed at 42 C.F.R. ��1001.102(b) and (c) has led to their comparison with rules of evidence: they establish which factors may be considered in deciding whether an exclusion is reasonable, but do not impose a rigid formula of weight or persuasiveness to be afforded any specific item of that evidence. Jeremy Robinson, DAB No. 1905, at 4; Keith Michael Everman, D.C., DAB No. 1880, at 7, and cases cited therein. The weight to be given any particular listed factor when it has been proven is determined by the factual matrix of the record as a whole: the circumstances of each case "drive the weight that a decisionmaker can give the aggravating and mitigating factors." Jeremy Robinson, DAB No. 1905, at 4. As to all but one of the listed potential mitigating and aggravating factors to be evaluated by the decisionmaker, each factor is to be assayed according to what it reveals about a petitioner's trustworthiness. Keith Michael Everman, D.C., DAB No. 1880, at 7. The mitigating factor described in 42 C.F.R. �1001.102(c)(3) requires a different analysis and is not relevant here.

In general, the Board has insisted that ALJs reduce an exclusionary period only when they descry some form of evidentiary deficiency underlying the aggravating factors upon which the I.G. relied, or when they discover evidence establishing a mitigating factor not considered by the I.G. in setting the enhanced period. Jeremy Robinson, DAB No. 1905. Where, as here, it is manifest that all of the aggravating factors on which the I.G. relied are present and that there are no mitigating factors, a holding that the exclusion period chosen by the I.G. was unreasonable can be reached only through an exercise in second-guessing the I.G.'s vast experience that Jeremy Robinson expressly forbids.

The I.G.'s vast experience would have shown that the amount of loss in this case is, if anything, brought into sharper focus by Petitioner's studied misrepresentations of it. As I have pointed out above, there is simply no lens through which the amount of loss in this case can be reduced to "a total amount of $215." P. Response at 1. The true amount of loss is, at the very least, that sum as reflected in Count 1, plus the additional sum of $8,161.50 reflected in Counts 12-37, plus the additional sum of $29,975 reflected in Counts 38-50. Thus, the specifically-identified losses directly attributable to acts explicitly admitted by Petitioner total well over $38,000. That figure does not include losses to the Social Security Administration's Title II disability program reflected in Count 181. It is also worthy of note that the $38,351.50 loss I have calculated here is more than half-again the size of the $22,666 loss relied on by the I.G. in his exclusion letter of November 30, 2004. By Petitioner's plain written agreement, the amount of loss could reasonably be calculated at well over three-quarters of a million dollars, and would have amounted to the sort of flagrantly-aggravating factor discussed in Jeremy Robinson, DAB No. 1905. Relying only on the $38,351.50 figure or the $22,666 figure, however, the I.G. would have been well within the bounds of reason in viewing Petitioner's attitude toward the protected programs as predatory and his appetite for their funds as rapacious. If the I.G.'s vast experience warned that the minimum period of exclusion would not be long enough for that appetite to moderate, the I.G. would have been reasonable in holding that belief and in relying on 42 C.F.R. � 1001.102(b)(1) to shape a substantially-enhanced period of exclusion, and such a reliance would have been reasonable even if no other aggravating factors were at issue.

The I.G.'s vast experience would have shown that the significant prison sentence and the adverse license proceedings derived from convictions for carefully-orchestrated criminal acts of a complex, sustained, pernicious nature. The I.G. was required to weigh their importance as aggravating factors in that light, and as the nature of the acts reflect on Petitioner's trustworthiness. The I.G. might plausibly have considered that the bases of the sentence and license proceedings were not crimes of passion, were not crimes of desperation, and were not crimes of opportunity or momentary lapses in judgment. The I.G. might reasonably have observed that the conspiracy and racketeering charges in particular displayed the unmistakable components of organization, cunning, craft, and willfulness, including both readiness and ability to draw others into the schemes. In deciding on the enhanced term of exclusion, the I.G. had every reason to weigh how those acts and characteristics were assessed by those obliged to examine them at first hand: the sentencing judge and the state licensing authorities. If the I.G.'s vast experience found those authorities' views significant, it is hardly difficult for me to find the I.G.'s view of them reasonable and grant that view appropriate deference.

The I.G. would not have been unreasonable in concluding that those acts alarmed the state licensing authorities by displaying Petitioner's deliberate, repeated criminal perversion of the position of trust he enjoyed as a licensed provider of health care services empowered to provide and bill for those services through publicly-funded health care programs and private insurance programs. Brij Mittal, M.D., DAB No. 1894; Fereydoon Abir, M.D., DAB No. 1764 (2001). If the I.G. gave very serious weight to the state licensing authorities' action, I have no basis here to say that doing so was unreasonable. That action, by itself, would have provided the I.G. with reasonable grounds for enhancing the period of exclusion pursuant to 42 C.F.R. � 1001.102(b)(9).

Nor would the I.G. have been unreasonable in concluding that Petitioner's 63-month prison sentence represents a "relatively substantial" and much more than a "token" incarceration term. Jeremy Robinson, DAB No. 1905; Jason Holladay, M.D., DAB 1855 (2002). The prison term imposed was five times longer than that imposed in Robinson, and was in fact the maximum available under the guideline analysis for which Petitioner bargained and to which Petitioner signed his name in consummation of his plea negotiations. I.G. Ex. 2, at 4, para. 8(f). It was, moreover, a term based on factors that Petitioner had conceded as part of those negotiations. Paragraphs 8(b) and 8(c) of the Plea Agreement reflect Petitioner's admission that he was a leader and organizer of the criminal activity to which he pleaded guilty, that his role in the criminal activity involved more than minimal planning, that he obstructed and impeded the administration of justice, and that the activity he organized involved five or more participants. I.G. Ex. 2, at 3-4. He acknowledged that he was not entitled to claim an adjustment of his sentence based on his acceptance of responsibility for his crimes. I.G. Ex. 2, at 4, para. 8(e). It is significant that Petitioner conceded that he deserved a term of imprisonment of from 51 to 63 months in length based on established sentencing guidelines to which he raised no challenge. I.G. Ex. 2, at 4, para. 8(f). It is obvious that, in fixing the actual term at the upper extremity of the guideline range, the sentencing court was unmoved in the direction of lenity.

There is an additional point of significance in Petitioner's concession that a term of 63 months would be fitting and within the guidelines. I.G. Ex. 2, at 3-4, paras. 8(a)-(e). By that concession, Petitioner insulated his sentence from even the most theoretical reach of United States v. Booker, 543 U.S. 220, which addressed the improper use of unconceded and unproven factors to enhance a sentence outside normal guidelines. To make the point in another way, Petitioner can find no comfort in Booker because that case addresses only situations in which a sentencing court departs upward from guidelines based on contested, unproven factors. Petitioner here not only admitted all of the factors that supported his sentence, but went further and agreed to a range of sentence-length based on an application of the guidelines he had himself endorsed as a fundamental part of his Plea Agreement. Since his sentence was within the range he accepted, based on guidelines he endorsed, and supported by factors he admitted, Petitioner can find nothing in Booker on which he may properly rely. Given the length of the prison term in this case - whether viewed in relative terms or in its absolute duration - it would have been sufficient in itself to warrant the I.G. in relying on 42 C.F.R. � 1001.102(b)(5) to enhance the period of exclusion well beyond the mandatory minimum.

Finally, the I.G. might quite reasonably have believed that the recurrent and dominating element of crimen falsi displayed in Petitioner's crimes had not only evoked stern punishment from other authorities, but, based on "vast experience in implementing exclusions," required strict prophylaxis in the future. That is, while the sentencing and licensing proceedings showed the I.G. as extrinsic matters how very seriously other authorities regarded Petitioner's crimes, the I.G. had at some point the obligation to consider them as intrinsic indicators of Petitioner's untrustworthiness in the future. This point is particularly telling, since the integrity of federal health programs, and their protection from untrustworthy participants, is a fundamental goal of the exclusion process and a central responsibility of the I.G. Jeremy Robinson, DAB No. 1905; Joann Fletcher Cash, DAB No. 1725. If the I.G. believed that Petitioner's propensity for connivance and deceit, and the resultant significant financial losses to a broad array of vulnerable public and private entities, were patent indicia of an egregious level of untrustworthiness, the I.G. would not have been unreasonable in weighing that fact heavily in favor of an extended period of exclusion.

All three of the aggravating factors relied on by the I.G. have been established as pleaded. As to none of them has there been a deficiency in evidence or a failure of proof, and each has been shown to be of substantial probative value in any reasonable test of trustworthiness. Petitioner has not established the mitigating factor based on reduced culpability. The factors in aggravation and mitigation of the period of exclusion here proposed are precisely as identified and evaluated by the I.G. Given these considerations, the I.G.'s determination to enhance the term of Petitioner's exclusion to 14 years is manifestly not unreasonable. Its length is well within a reasonable range.

VI. Conclusion

For the reasons set out above, the I.G.'s Motion for Summary Affirmance should be, and it is, GRANTED. The I.G.'s exclusion of Petitioner Russell Mark Posner from participation in Medicare, Medicaid, and all other federal health care programs for a period of 14 years, pursuant to the terms of section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), is thereby sustained.

Richard J. Smith

Administrative Law Judge

1. The racketeering acts set out in Count 219 also form the chronological "bookends" of Petitioner's admitted misconduct. The approximate date of the earliest criminal conduct admitted in Count 219, part of the Waxman mail fraud scheme, was March 10 or 12, 1997, as charged in Racketeering Act 12, based on Count 201. I.G. Ex. 1, at 49, para. 156. The most recent criminal conduct Petitioner admitted in Count 219, a fraudulent billing sent to Met Life, occurred on April 28, 2000, as charged in Racketeering Act 1, based on Count 34. I.G. Ex. 1, at 14, para. 49. The crimes he admitted in the other two counts took place between those dates: Count 2 charged an act of mail fraud on or about February 3, 1998, and Count 181 alleged a conspiracy that began in January 1997 and ended on July 15, 2000, but the earliest overt act charged against Petitioner was on April 15, 1998, and the most recent was on April 15, 2000.

Thus Petitioner admitted and was convicted of crimes that took place between March 10 or 12, 1997 and April 28, 2000. The span of time inclusive of crimes with which he was charged but was not convicted began on or about January 1, 1995, and extended through August 20, 2000. I.G. Ex. 1, at 7, para. 30; I.G. Ex. 1, at 54, para. 171. Both these time-spans are important in showing the temporal connection among Petitioner's "similar acts," but they also figure importantly in my discussion of his claim of "reduced culpability," infra.

2. The Board did not appear intentionally to dilute or shift a petitioner's burden under the Garfinkel-James rule when it decided Arthur C. Haspel, D.P.M., DAB No. 1929 (2004), for it wrote: "Accordingly, we conclude that Petitioner met his burden to establish the existence of the mitigating factor described in section 1001.102(c)." Haspel, DAB No. 1929, at 5. Moreover, writing seven weeks after its decision in Haspel, the Board cited this language with approval as it expounded the rule much more forcefully in Gale, DAB No. 1941. This language may justify my view that nothing in Haspel has released Petitioner from an identical obligation in this case.

3. Haspel was convicted and sentenced in United States District Court for the Eastern District of Tennessee on July 23, 2002. His April 1998 crimes were felony violations of federal statutes and charged the illegal sale of Schedule III controlled substances. The Board's Haspel decision does not explain why Haspel's was a case "where the judge would not need to make an explicit finding (of reduced culpability based on drug abuse) for purposes of the sentencing proceeding itself." It does not suggest how such a case might be recognized in the future. The Haspel record before the Board contained a copy of Haspel's Plea Agreement, in which he acknowledged that "[t]he maximum penalty to which the defendant will be exposed is imprisonment for a period not less than five (5) years for each count." The Haspel record does not contain, and the Board does not discuss the existence or absence of, a Notice of Intent to Depart Downward from the Sentencing Guidelines (Rule 32(h) Notice), as required by Burns v. United States, 501 U.S. 129 (1991) and United States v. Crouse, 145 F.3d 786 (6^th Cir. 1998). A below-guideline sentence is plain error in the Sixth Circuit absent such a notice. United States v. Yang, 281 F.3d 534 (6^th Cir. 2002); United States v. Kuhn, 345 F.3d 431 (6^th Cir. 2003). The Eleventh Circuit observes a similar rule. United States v. Valentine, 21 F.3d 395 (11^th Cir. 1994); United States v. Baker, 19 F.2d 605 (11^th Cir. 1994).

4. It is not only possible, but it seems extremely likely, given Haspel's position in the record before the Board. Petitioner's Exhibit 4 in that record is a May 19, 2003 letter written to the I.G. by Haspel's attorneys in the license proceedings. The fourth page of that letter details Haspel's cooperation with medical and law-enforcement authorities, recites his admission of the criminal charges, and then describes the District Court as "[r]ecognizing his commitment to a program of recovery, his cooperation with those that have sought to evaluate his behaviors, and the role that his disease played in the criminal behaviors . . . ." It is very difficult to tease out Haspel's addiction and its effects and see it as the only factor, or even as a necessary factor, in the District Court's decision to impose a lenient sentence.

5. It will have been observed that Petitioner's convictions include "similar acts" committed over a 37-month period. Had the I.G. chosen to invoke the aggravating factor described at 42 C.F.R. � 1001.102(b)(2), the facts before me would seem to support that invocation. The I.G. has not chosen to invoke it, and I have not considered it as an aggravating factor in this Decision.