REVISED December 29, 2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20416

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

DENNIS BARSON, JR.; DARIO JUAREZ, 

 Defendants - Appellants

Appeals from the United States District Court 

for the Southern District of Texas

Before REAVLEY, DAVIS, and JONES, Circuit Judges.

PER CURIAM:

Defendants appeal their convictions for conspiracy to commit health care 

fraud and several substantive counts of health care fraud. Defendants

primarily challenge the sufficiency of the evidence, the court’s deliberate 

ignorance jury instruction, a number of evidentiary rulings, and the 

enhancements applied to their sentences. We AFFIRM. 

I. 

Defendants Dennis Barson, Jr. and Dario Juarez were charged with one 

count of conspiracy to commit health care fraud under 18 U.S.C. § 1349 (Count 

United States Court of Appeals

Fifth Circuit

FILED

December 28, 2016

Lyle W. Cayce

Clerk
No. 15-20416

2

1) and nineteen counts of health care fraud under 18 U.S.C. § 1347 (Counts 2 

through 20). After a jury trial, both Defendants were convicted on all 20 

counts. The district court sentenced Barson and Juarez to 120 and 130 months 

of imprisonment, respectively, followed by three years of supervised release. 

The court also ordered forfeiture and restitution.

Defendant-Appellant Barson was recruited by Edgar Shakbazyan to 

serve as the medical director for a diagnostic clinic under Shakbazyan’s control

in Houston, Texas. Shakbazyan was the manager of the clinic and handled the 

financial affairs of the clinic. He was indicted in a multi-count indictment in 

this case and was convicted pursuant to his plea of guilty. 

At Shakbazyan’s request, Barson signed a blank form so the clinic could 

apply for and obtain a Medicare number to be used to bill Medicare for its 

services. Barson opened a bank account in his name where Medicare

reimbursements could be deposited. Barson also signed a number of blank 

checks and gave them to Shakbazyan so he could draw on the account.

The clinic opened on June 8, 2009. For $7,000 per month, Barson 

traveled from Austin to Houston every other Saturday to review patient files. 

The clinic was set up to perform EKGs, ultrasounds, electrocardiograms, 

spirometer tests, and physical exams performed by a physician’s assistant. 

Medicare was billed for 9,339 procedures for tests performed on 429 

beneficiaries using Barson’s Medicare number. Hundreds of the claims were 

for rectal sensation testing and electromyography studies of the anal or 

urethral sphincter, which the clinic could not and did not perform. At trial, 

several of the clinic’s patients testified they went to the clinic because they 

were paid to do so and some never received any medical services. Barson 

testified he never reviewed bank statements, Medicare remittances, or concern 

himself with any of the financial affairs of the clinic. 
No. 15-20416

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Defendant-Appellant Juarez worked at the clinic and claimed to be a 

physician’s assistant working under Barson’s supervision. Juarez, who had no 

formal medical training, held himself out to patients as a physician and was 

the medical staff member at the clinic. 

Barson closed the clinic on July 30, 2009, after he suspected that the 

clinic was not above board; however he notified no one of his suspicions. 

Several suspicious circumstances came to Barson’s attention. In the 

weeks leading up to closing the clinic, Barson made a number of unsuccessful 

attempts to reach the California doctor who reviewed ultrasounds for the clinic. 

Barson also learned in July that Shakbazyan was lying about his true identity. 

On August 4, a Medicare contractor in charge of waste, fraud, and abuse, 

opened an investigation into the clinic and tried unsuccessfully to contact 

Barson by phone. On August 11, Barson closed the clinic bank account set up

to receive Medicare reimbursements. Upon receiving his 1099 tax form in

February 2010, Barson learned that the clinic’s bank account in his name 

received approximately $1.2 million in Medicare reimbursements. In his 

testimony, he claimed this was his first notice that this large sum had been 

deposited in his account during the approximately two months the clinic had 

been open. 

II. 

Sufficiency of the evidence challenges are reviewed de novo.1 In doing 

so, this Court must determine whether “any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.”2 The 

 

1 United States v. Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014) (citing United 

States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012)). 

2 Jackson v. Virginia, 443 U.S. 307, 319 (1979); Umawa Oke Imo, 739 F.3d at 235 

(quoting United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011)). 
No. 15-20416

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Court should accept “all credibility choices and reasonable inferences made by 

the trier of fact which tend to support the verdict.”3 

III. 

Sufficiency of the Evidence

Defendants’ primary challenge on appeal is to the sufficiency of the 

evidence to establish both the conspiracy count and the substantive counts for 

health care fraud. 

To establish a conspiracy to commit health care fraud, the government 

must show “the existence of an agreement between two or more people to 

pursue the offense of fraud; the defendant knew of the agreement; and the 

defendant voluntarily participated in the conspiracy.”4 The agreement may be 

silent and informal between the conspirators.5 Further, “voluntary 

participation may be inferred from a collection of circumstances, and 

knowledge may be inferred from surrounding circumstances.”6 The defendants

need not have personally submitted the necessary forms requesting 

reimbursement from Medicare to be guilty of health care fraud or conspiracy 

to commit health care fraud.7 The government may use direct or 

circumstantial evidence to prove each element.8 

At trial, both Barson and Juarez argued they had no knowledge of the 

fraudulent activity, let alone an agreement to commit fraud. 

Barson based his argument that he had no knowledge of fraudulent 

activity on his lack of experience. Before taking the job as the medical director 

 

3 Umawa Oke Imo, 739 F.3d at 235. 

4 United States v. Delgado, 688 F.3d 219, 226 (5th Cir. 2012).

5 United States v. Grant, 683 F.3d 639, 643 (5th Cir. 2012) (citing United States v. 

Williams-Hendricks, 805 F.2d 496, 502 (5th Cir. 1986)). 

6 United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009). 

7 Umawa Oke Imo, 739 F.3d at 235. 

8 Id. (citing Delgado, 668 F.3d at 226). 
No. 15-20416

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for the clinic, Barson was a physician in the Navy and worked a short time in 

private practice. When he was hired by Shakbazyan to work for the clinic,

Barson was working as a neurology resident in Austin, Texas. On a resident’s 

salary, he argued, he needed the extra money the job at the clinic would 

provide. Barson had no prior experience with Medicare or medical billing 

practices in any of his prior positions. Barson argued that he had no way of 

knowing about the fraudulent scheme because he never saw any patient files 

that included many of the tests the clinic billed Medicare for. Barson testified 

that the patient files he reviewed included services that the clinic was set up 

to provide: EKGs, ultrasounds, electrocardiograms, spirometer tests, and 

physical exams performed by a physician’s assistant. Because he was hired in 

this limited role to review patient files set aside for him twice a month, Barson 

maintained that he had no way of knowing that the clinic was engaged in

fraudulently billing Medicare. 

Similarly, Juarez argued that even though he was impersonating a 

physician’s assistant, he had no knowledge of or access to any of the facility’s 

billing systems. 

The government presented ample circumstantial evidence to establish

both Defendants’ knowledge of the ongoing health care fraud. Barson signed 

documents in blank allowing the clinic to bill under his Medicare identification 

number and opened a bank account in his name to receive Medicare 

reimbursements. He signed a number of blank checks to permit Shakbazyan 

to draw on the account. He allowed the bank statements to be sent to the clinic 

and never reviewed them. Barson received a significant sum, $7,000 per 

month, for reviewing patients’ charts every other Saturday. Barson admitted 

to an FBI investigator that despite his suspicions and bad feelings about the 

clinic, he reported his suspicions to no one. He quietly closed the clinic on July 

30. Barson did not monitor the bank account in his name or review any 
No. 15-20416

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Medicare remittances that went to the clinic. Upon receiving his 1099 tax form 

showing that the clinic bank account received nearly $1.2 million, Barson again 

failed to contact Medicare to report his concerns. 

The government also established that Juarez was aware he was 

participating in a scheme to commit Medicare fraud. Juarez held himself out 

as a “doctor” at the clinic and falsely claimed to Barson that he was a 

physician’s assistant, the clinic’s on-site medical staff member. Juarez saw 

almost all of the patients and turned a blind eye to the fact that most of the socalled patients had no need for medical care and that many received no medical 

care. He saw large numbers of patients lining up outside the clinic daily after 

being delivered to the clinic by the same white van. Juarez had access to the

clinic’s mail including the bank statements and Medicare remittances. Juarez 

was paid $20,000 for his work, a large sum for an unlicensed individual to pose 

as a physician’s assistant. He lied to investigators about the payments he 

received. Juarez also gave conflicting testimony to an FBI investigator about 

an alleged break in at the clinic and missing patient files. 

Barson also argues that the evidence was insufficient to establish an 

“agreement” to commit health care fraud. His arguments closely track his 

arguments on the knowledge element and fails for similar reasons. 

The evidence established that Barson and Shakbazyan agreed that (1) 

Barson would apply for a Medicare number; (2) Barson would allow the clinic 

to use that number to bill Medicare; and (3) Barson would receive $7,000 per 

month for reviewing files every other Saturday. The evidence established that 

Shakbazyan set up the fraudulent scheme and had intimate knowledge of the 

details of the fraud. 

Juarez agreed with Skakbazyan to work at the clinic as the medical staff 

member and hold himself out as a physician’s assistant to Barson and as a 

physician to the patients. 
No. 15-20416

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The jury was also entitled to find that the Defendants committed health 

care fraud on the substantive counts of the indictment. Each substantive count 

was based on a separate request for Medicare reimbursements that the 

government established were not for medical services needed or provided. 18 

U.S.C. § 1347 sets forth the elements of the offense:

Whoever knowingly and willfully executes, or attempts to execute, 

a scheme or artifice—

(1) to defraud any health care benefit program; or

(2) to obtain, by means of false or fraudulent pretenses, 

representations, or promises, any of the money or property owned 

by, or under the custody or control of, any health care benefit 

program, 

in connection with the delivery of or payment for health care 

benefits, items, or services [commits health care fraud].9

Here, the jury was entitled to convict Defendants pursuant to the 

Pinkerton doctrine, which imposes criminal liability on all conspirators for the 

acts of other co-conspirators when those acts are foreseeable.10 Because the 

evidence was sufficient to convict Defendants on the conspiracy count, the jury 

was entitled to convict them on the substantive counts as well. The Defendants 

were responsible for the acts of co-conspirator Shakbazyan who actually 

submitted or caused to be submitted the fraudulent claim forms for Medicare 

reimbursement. 

Deliberate Ignorance Instruction

Defendants argue next that the district court erred in giving the 

deliberate ignorance instruction. 11 The evidence summarized above raised a 

 

9 18 U.S.C. § 1347(a). 

10 Pinkerton v. United States, 328 U.S. 640 (1946).

11 The district court instructed the jury, 

The word “knowingly,” as that term has been used from time to time in these 

instructions, means that the act was done voluntarily and intentionally, not 

because of mistake or accident. You may find that a defendant had knowledge 
No. 15-20416

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legitimate issue of whether Barson and Juarez turned a blind eye to the fact 

that Medicare was being billed large sums for services not performed. Barson’s 

acts in signing blank forms to allow Medicare to be billed for procedures under 

his number, opening a bank account in his name for the reimbursements, and 

signing blank checks for Shakbazyan to draw on the account was sufficient to 

permit the jury to infer that Barson took pains to avoid personal knowledge of 

incriminating facts. Barson’s failure to review any remittances from Medicare 

or bank statements from his own bank account could have been viewed 

similarly. Juarez relied on his lack of medical training and his unfamiliarity 

with the Medicare forms to argue that he suspected no wrongdoing. Our 

precedent supports submission of “a deliberate ignorance instruction ‘when a 

defendant claims a lack of guilty knowledge and the proof at trial supports an 

inference of deliberate indifference.’”12 The record clearly authorized the 

district court to give the instruction and the court did not abuse its discretion 

in giving it. 

Object of the Conspiracy

Next, Defendants argue that the district court abused its discretion by 

rejecting their proposed instruction on the object of the conspiracy. Defendants 

complain that the district court did not instruct the jury that the government 

was required to prove the object of the conspiracy in the exact language of the 

indictment. The court instructed the jury that the object of the conspiracy was 

 

of a fact if you find that the defendant deliberately closed his eyes to what 

would otherwise have been obvious to him. While knowledge on the part of the 

defendant cannot be established merely by demonstrating that the defendant 

was negligent, careless, or foolish, knowledge can be inferred if the defendant 

deliberately blinded himself to the existence of a fact. However, if you find that 

the defendant actually believed the Medicare claims being filed were not 

fraudulent, then you must acquit the defendant. 

See Fifth Circuit Pattern Jury Instructions (Criminal Cases) 1.37A. 

12 United States v. Vasquez, 677 F.3d 685, 696 (5th Cir. 2012) (quoting United States 

v. Threadgill, 172 F.3d 357, 368 (5th Cir. 1999)). 
No. 15-20416

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“health care fraud, in violation of Title 18, United States Code, Section 1347.” 

At Barson’s request, the court also charged: 

Specifically, as to each defendant under consideration, it was an 

object of the conspiracy that the defendant and others known and 

unknown to the grand jury unlawfully enrich themselves by falsely 

and fraudulently representing to Medicare that certain services 

and procedures were performed for Medicare beneficiaries when, 

in fact, the defendant well knew the services and procedures were 

not being performed.13

The Defendants contend the court erred in failing to instruct the jury that the 

government was required to prove these facts. We find no abuse of discretion 

in the district court’s instruction. The district court instructed the jury on the 

object of the conspiracy that tracks the Fifth Circuit pattern jury instructions, 

which we have approved.14 The above instruction makes it clear that it is 

describing an object of the conspiracy. The government is not required to prove 

all facts alleged in the indictment as long as it proves certain facts which 

satisfy the elements of the offense. 

Evidentiary Rulings

Defendants raise a number of evidentiary objections in brief including:

whether the district court erred in admitting the testimony of the executive 

director of the Texas Medical Board; whether the cross-examination of the FBI 

Case Agent was appropriately limited to the Agent’s direct examination 

 

13 The district court instructed the jury on the following elements of health care fraud: 

For you to find one or both defendants guilty of this crime, you must be 

convinced that the government has proved for the defendant then under 

consideration each of the following beyond a reasonable doubt: First, that two 

or more persons made an agreement to commit the crime of health care fraud 

as charged in the indictment. Second: That Dennis B. Barson, Jr. and Dario 

Juarez knew of the unlawful purpose of the agreement and joined in it 

willfully, that is, with the intent to further the unlawful purpose. 

14 United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009) (“It is well-settled that 

a district court does not err by giving a charge that tracks this Circuit’s pattern jury 

instructions and that is a correct statement of the law.”) (citing United States v. Turner, 960 

F.2d 461, 464 (5th Cir. 1992)). 
No. 15-20416

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testimony; whether the exclusion of the plea colloquy of Shakbazyan was 

proper; and whether the exclusion of evidence gathered by a police officer in 

California from an unindicted co-conspirator was proper. We have reviewed 

Defendants’ arguments and find no abuse of discretion in the evidentiary 

rulings by the district court.

Sentencing

Barson disputes two enhancements applied to his sentence. Juarez joins 

Barson in objecting to the first enhancement. 

First, Defendants argue that the district court erred in concluding the 

429 patients or Medicare beneficiaries for whom the conspirators falsely 

claimed benefits were “victims” under the guidelines.15 We agree with the 

government that Application Note 4(E) of U.S.S.G. § 2B1.1 defines “victim” in 

a way that encompasses the Medicare beneficiaries because it includes “any 

individual whose means of identification was used unlawfully or without 

authority.”16 The district court did not err in applying this enhancement. 

Second, Barson argues that the application of a sentencing enhancement 

for obstruction of justice under U.S.S.G. § 3C1.117 was inappropriate. During 

 

15 See U.S.S.G. § 2B1.1(b)(2)C) (2009). 

16 U.S.S.G. § 2B1.1 cmt. n.4(E). The Application Notes were amended in 2009 to 

include this additional definition of “victim.” The amended Note reads, “For purposes of 

subsection (b)(2), in a case involving means of identification ‘victim’ means (i) any victim as 

defined in Application Note 1; or (ii) any individual whose means of identification was used 

unlawfully or without authority.” Id. Application Note 1 defined victim as “(A) any person 

who sustained any part of the actual loss . . . ; or (B) any individual who sustained bodily

injury as a result of the offense.” U.S.S.G. § 2B1.1 cmt. n.1 (2008). Shakbazyan, who pleaded 

guilty on the first day of trial, challenged this application of the six-level sentencing 

enhancement under the Ex Post Facto Clause because the definition of “victim” was amended 

to include the unauthorized use of individuals’ information. This same panel determined 

that Shakbazyan’s argument was foreclosed by Fifth Circuit precedent and affirmed the 

district court’s sentence. United States v. Shakbazyan, No. 15-20426, at 4-7, 9. 17 The guideline states, 

If (1) the defendant willfully obstructed or impeded, or attempted to obstruct 

or impede, the administration of justice with respect to the investigation, 

prosecution, or sentencing of the instant offense of conviction, and (2) the 
No. 15-20416

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sentencing, the government argued that Barson’s testimony was laden with 

falsehoods designed to mislead the jury including: Barson’s claim that he

trusted Shakbazyan so thoroughly he signed forms in blank on the day he met 

Shakbazyan and failed to ask for information about the Medicare application; 

Barson opened a bank account to receive reimbursements from Medicare, but 

did not know where the statements were being sent; and Barson failed to ask 

Juarez for his credentials or register the supervision of him with the Texas 

Medical Board. The district court who heard Barson’s testimony agreed.18 Our 

review of the record satisfies us that the district court, who observed Barson 

testify, did not abuse its discretion in finding that Barson’s testimony lacked 

credibility and was untruthful in his testimony.

Prosecutorial Misconduct

Defendants allege that several statements made by prosecutors during 

trial amounted to prosecutorial misconduct. Some statements were objected 

to during trial and some objections are raised on appeal. We have reviewed 

these arguments and statements and find no error by the district court in 

permitting these arguments. 

IV. 

The district court committed no reversible error and we therefore affirm 

the Defendants’ convictions and sentences. 

 

obstructive conduct related to (A) the defendant's offense of conviction and any 

relevant conduct; or (B) a closely related offense, increase the offense level by 

2 levels. 

U.S.S.G. § 3C1.1. 18 The district court stated during sentencing, “Well, of course, I was here and listened 

to [Barson’s] testimony. I agree with [the government] that much of it was not credible; and 

because he testified not credibly or untruthfully, that does–that is an obstruction of justice.”
No. 15-20416

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JONES, Circuit Judge, concurring in part and dissenting in part:

Although I am pleased to concur in the bulk of this Medicare fraud 

appeal, I differ with the panel majority’s interpretation of the term “victim” for 

sentencing enhancement purposes. The majority has embraced an 

unprecedented and grammatically inexplicable use of the term to, in effect, 

double count the loss attributable to this unsavory fraudulent patient care 

operation. The government has commendably stepped up its prosecution of 

flagrant Medicare and Medicaid frauds, but never have I seen this double 

counting of the “loss” to include not only the United States taxpayers who 

support Medicare payments but also the “patients,” who paid not a dime, may 

not have even received treatment, and in a number of cases were coconspirators paid to lend their names to the treatment center’s fictitious files. 

Defendants have a right to be sentenced according to the plain meaning of the

guidelines, not the government’s here-concocted abuse of terms. I respectfully 

dissent.

The defendants here received a six-level sentencing enhancement upon 

the district court’s finding that the 429 Medicare beneficiaries who visited 

defendants’ fraudulent clinic were “victims” under the United States 

Sentencing Guidelines. (There was already an enhancement for the loss to the 

United States Treasury.) The majority’s opinion tersely affirms the 

enhancement.1 I would vacate the defendants’ sentences and remand for 

resentencing because the Guidelines and relevant Commentary are 

 

1 The full treatment of the issue in the per curiam opinion is as follows: “Defendants 

argue that the district court erred in concluding the 429 patients or Medicare beneficiaries 

for whom the conspirators falsely claimed benefits were ‘victims’ under the guidelines. We 

agree with the government that Application Note 4(E) of U.S.S.G. § 2B1.1 defines ‘victim’ in 

a way that encompasses the Medicare beneficiaries because it includes ‘any individual whose 

means of identification was used unlawfully or without authority.’ The district court did not 

err in applying this enhancement.”
No. 15-20416

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inapplicable under both the plain meaning of the term “victims” and the 

purpose of its 2009 definition.

By way of background, “Victim” is not defined in the loss section of the 

Guidelines, § 2B1.1, but Note 1 (here inapplicable) and Note 4 of the 

Commentary define the term. Note 4(E) provides in relevant part:

For purposes of subsection (b)(2), in a case involving means of 

identification “victim” means (i) any victim as defined in 

Application Note 1; or (ii) any individual whose means of 

identification was used unlawfully or without authority.2

The government argues that since the use of the 429 alleged beneficiaries’ 

Medicare identification information was part of an unlawful conspiracy, the 

enhancement was proper. The defendants contend, however, that the 

beneficiaries were participants in the Clinic’s kickback scheme rather than 

victims, and that the 2009 iteration of the Sentencing Guidelines was not

intended to treat these beneficiaries as victims. 

Guidelines Commentary “that interprets or explains a guideline is 

authoritative unless it violates the Constitution or a federal statute, or is 

inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson 

v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915 (1993). “Application 

notes are given controlling weight so long as they are not plainly erroneous or 

inconsistent with the guidelines.” United States v. Rodriguez-Parra, 581 F.3d 

227, 229 n.3 (5th Cir. 2009) (citing United States v. Urias-Escobar, 281 F.3d 

165, 167 (5th Cir. 2002)).

In my view, the government’s reading of the Guidelines is plainly 

erroneous for two reasons. First, that interpretation is inconsistent with the

 

2 U.S.S.G. § 2B.1.1(b)(2)(C), Note 4(E) Cases Involving Means of Identification.
No. 15-20416

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plain meaning of the term “victim.” A victim is a “person who suffers from a 

destructive or injurious action or agency.” “Victim,” The Random House 

Dictionary of the English Language (1966). See also “Victim,” MerriamWebster’s Dictionary of the English Language, http://www.merriamwebster.com/dictionary/victim, accessed Oct. 26, 2016 (“a person who has been 

attacked, injured, robbed, or killed by someone else”). The government, which 

bore the burden of proof for sentencing purposes, did not establish that any of 

the 429 purported patients were victims in this definitional sense. On the 

contrary, as the majority opinion states, “At trial, several of the clinic’s patients 

testified they went to the clinic because they were paid to do so and some never 

received any medical services.” Consequently, at least some of the 429 alleged 

beneficiaries could have been considered co-conspirators. Applying the 

application of the term “victims” here verges on the Orwellian. 

Second, the majority’s interpretation is inconsistent with the purpose of 

the Guideline’s definition of victims. The Guidelines were updated as part of 

Amendment 726 to the Identity Theft Enforcement and Restitution Act of 2008.3 

The Sentencing Commission explained its reasoning for proposing the

amendment that was adopted to create Application Note 4(E): to address more 

fully the actual harm done by identity theft.4 Several circuits’ interpretation 

of the pre-2009 Guidelines had broadened the definition of victims to those 

“individuals who suffered considerably more than a small out-of-pocket loss 

and were not immediately reimbursed by any third party,” even if they were 

 

3 U.S.S.G. App’x C, Vol. III, Am. 726, p. 308

4 Office of General Counsel, Victim Primer (§2B1.1(b)(2))I, U.S. Sentencing 

Commission (2013), at 6.
No. 15-20416

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later reimbursed.5 Other circuit precedent held that victims were only those 

who suffered pecuniary loss from identity theft but were not reimbursed at all.6 

Amendment 726 was intended to resolve this circuit split.7 Under the 2009 

Guidelines, while a victim of identity theft may be reimbursed by a third-party 

or bank, the Commission explained that “such an individual [victim], even if 

fully reimbursed, must often spend significant time resolving credit problems 

and related issues, and such lost time may not be adequately accounted for in 

the loss calculations under the guidelines.”8 According to the Commission, this 

hassle and lost time justified considering as a victim for sentencing purposes 

anyone whose identity was stolen. Therefore, the purpose for the definition of 

victims under Note 4(E) is to capture by an enhancement harms otherwise 

difficult to measure. This purpose is entirely consistent with the plain 

meaning of “victim” in the English language.

This purpose is not fulfilled by applying the definition of victims in this 

case. The government has not established that the 429 Medicare claimants 

had to spend “significant time,” or any time at all, resolving credit or related 

issues. Even real Medicare beneficiaries are not normally victims of Medicare 

fraud because Medicare, not the patient, pays the billing provider directly. The 

real victim is the U.S. taxpayer, through Medicare, and that has been 

 

5 United States v. Lee, 427 F.3d 881, 895 (11th Cir. 2005) (internal quotation marks 

omitted). See also United States v. Stepanian, 570 F.3d 51 (1st Cir. 2009); United States v. 

Abiodun, 536 F.3d 162 (2d Cir. 2008); United States v. Panice, 598 F.3d 426 (7th Cir. 2010); 

United States v. Pham, 545 F.3d 712 (9th Cir. 2008).

6 United States v. Yagar, 404 F.3d 967 (6th Cir. 2005). See also United States v. 

Kennedy, 554 F.3d 415 (3d Cir. 2009); United States v. Conner, 537 F.3d 480 (5th Cir. 2008); 

and United States v. Icaza, 492 F.3d 967 (8th Cir. 2007).

7 Victim Primer (§2B1.1(b)(2)) at 8.

8 USSG §2B1.1, comment. (n.4); USSG App. C, amend. 726 (eff. Nov. 1, 2009).
No. 15-20416

16

accounted for by the guidelines in this case. There is no proof at all that the 

purported beneficiaries in this case suffered any harm, pecuniary or otherwise; 

they cannot be considered victims under Note 4(E). 

I respectfully dissent from this portion of the majority opinion.