Justice Neil Gorsuch poses for an official portrait in the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, D.C. (Photo by Alex Wong/Getty Images.)
The U.S. Supreme Court denied the appeal of a more than $82 million restitution order imposed on a group of doctors convicted of a massive fraud scheme in Texas, but Justice Neil Gorsuch dissented from his fellow justices’ decision, saying that he would have chosen to review the lower court’s upholding of the restitution sentence.
Forest Park Medical Center was a physician-owned hospital in Dallas that was not part of any insurance company’s network and did not accept payments via Medicare or Medicaid. The practice made money by steering lucrative patients — those that distributed high reimbursements for out-of-network procedures — to its facility with the help of kickbacks paid to referring physicians. Forest Park’s owners were prosecuted and criminally convicted of a $200 million bribery scheme for its practice of illegally incentivizing doctors to perform surgery at the facility with referral kickbacks falsely characterized as “marketing money” or consulting fees.
The practice owners were prosecuted and convicted under the federal Anti-Kickback Statute (AKS). Seven of the defendants were sentenced to a combined more than 74 years in prison and ordered to pay a total of $82.9 million in restitution.
Mrugeshkumar Shah, Shawn Mark Henry, Michael Bassem Rimlawi, Douglas Sung Won, Jackson Jacob, and Iris Kathleen Forrest appealed the restitution portion of their sentence. They argued that the Mandatory Victims Restitution Act (MVRA) does not apply to their conviction because it was not “an offense against property.” Both the district court and the U.S. Court of Appeals for the Fifth Circuit ruled against them
The defendants did not dispute that their conduct deprived private insurance companies of property by means of fraud or deceit, but they claimed that under the correct analysis, their actual conduct is not what matters. Rather, they said, the court must employ the “categorical approach,” and examine the statutory elements of the crime. Given that no element of the applicable statute involves fraud or deceit, the MVRA does not apply, according to the defendants.
The Fifth Circuit was unconvinced. Writing for the appellate court, Chief U.S. Circuit Judge Priscilla Richman, a George W. Bush appointee, ruled that under the MVRA, the manner in which a crime was carried out is what matters for purpose of restitution — not the precise definition of the crime under the prosecuting statute.
“The categorical approach is inappropriate for this [restitution] statute and ‘the [district] court may look to the facts and circumstances of the offense of conviction to determine if the MVRA authorizes a restitution order,”” wrote Richman.
The justices denied certiorari in the case Monday, thereby leaving the Fifth Circuit’s decision standing as the final word on the issue of restitution.
Gorsuch, however, penned a brief dissenting statement in which he expressed, “I have my doubts” about a judge’s ability to legally order restitution in a criminal case based on their own factual findings, without the aid of a jury.
Gorsuch argued that the Sixth Amendment guarantees a trial by jury, and that this means that only a jury is entitled to make a finding on facts with the propensity to increase a defendant’s penalties. According to the justice, the founders agreed.
“And more than a little evidence suggests that, at the time of the founding, juries found the facts needed to justify criminal restitution awards,” Gorsuch wrote.
Gorsuch said that he would have granted review in the case to answer the question of whether the Fifth Circuit handled its analysis properly under applicable precedent, “and the Constitution’s original meaning.”
The justice ended his brief statement with something of a warning: “In the absence of this Court’s review, I can only hope that federal and state courts will continue to consider carefully the Sixth Amendment’s application to criminal restitution orders.”
