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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________

No. 96-1203

UNITED STATES OF AMERICA,

Appellee,

v.

CHARLES HENRY GILL, JR.,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]


___________________

____________________

Before

Torruella, Chief Judge,


___________

Boudin, Circuit Judge,


_____________

and Lisi,* District Judge.


______________

____________________

Terry A. Fralich
________________

with whom Peter J. DeTroy and Norman, Hanson


________________
______________

DeTroy were on briefs for appellant.


______
Helene Kazanjian, Assistant
_________________

United

States

Attorney, with

Jay P. McCloskey, United States Attorney, was on brief for the Uni
_________________
States.

____________________

November 6, 1996

____________________

____________________

*Of the District of Rhode Island, sitting by designation.

BOUDIN, Circuit

Judge.

Charles Gill appeals

from his

______________

sentence,

following a

charges, to

of guilty

challenge two sentencing

the district judge.

victim

plea

to various

determinations made by

One involves the issue of the vulnerable

adjustment,

U.S.S.G.

3A1.1(b);

increase for abuse of a position of trust.

facts,

which

we

briefly

presentence report,

other materials

criminal

the

summarize,

are

the

Id.
___

an

3B1.3.

The

from

the

drawn

sentencing transcript

before the district court.

other,

and

various

United States v.
_____________

Egemonye, 62 F.3d 425, 426 (1st Cir. 1995).


________

From

operated

Counseling

August 1993

the

Maine

Center

until November

Health

in

1994, Gill

Trust, doing

Fryberg,

Maine,

business

and

owned and

as

The

provided

psychological

Counseling

counseling

Center

February 1994

services

during this

to

period.

to November 1994, Gill

at the Bethel Area

individuals

at

the

Additionally, from

was employed part-time

Health Center in Bethel, Maine,

where he

performed similar counseling services.

Gill told individual patients at the two facilities, and

his employers

at

the Bethel

Area

Health Center,

that

he

possessed a doctoral degree in psychology and was licensed as

a psychologist or counselor

under Maine law.

In

fact, Gill

was not licensed and had never received an advanced degree in

either

psychology or

counseling.

Gill

had a

substantial

record of offenses involving theft and passing bad checks.

-2-

-2-

During the period in question, Gill submitted claims, or

caused patients and

the Bethel Area Health Center

to submit

claims for payment to various private insurance companies and

the

Medicare and

provided

to them.

Medicaid programs

The

for services

total value of

from these entities was over $37,000.

that Gill

the payments claimed

Gill also made similar

false

statements as to his

credentials and licensing to the

insurance companies and to Medicare and Medicaid authorities.

Gill

received payments totalling

over $16,000 directly from

individual patients.

In

March

1995,

willfully

using

statement,

18

passport when

of

one

pled

a passport

U.S.C.

secured

statements to

1341,

by

1542, Gill

at

the start

1995, Gill pled guilty

count of

guilty

wire

fraud, and

to

42

U.S.C.

consolidated for sentencing.

proffered

his employment.

to one count

of

false

the

count of

1320.

All

In

of mail fraud,

making

the Medicare and Medicaid programs.

1343;

count

Center requested proof

of

one

one

means of

having

the Bethel Area Health

his citizenship

October

Gill

false

18 U.S.C.

charges

were

Following a

hearing on

court sentenced Gill to

supervised release,

the district

40 months' imprisonment, three years

and a requirement of

amount of $43,481.49.

two-level increase

January 30, 1996,

restitution in the

The underlying calculations included a

in Gill's

base offense level

-3-3-

for victim

vulnerability, U.S.S.G.

for abuse of a

3A1.1(b), and

position of trust, id.


___

a two-level increase

3B1.3.

two adjustments that

are the sole subjects

from

Gill was

his sentence.

1995 edition

of Gill's appeal

sentenced under

of the guidelines,

It is these

the November

and references are

to that

version unless otherwise specified.

The standard of review in such a case is simple, in fact

deceptively so,

court's

factual

erroneous,

novo.
____

1991).

in the

and the

standard formulation:

findings

are

respected

determinations

United States v. Sabatino,


_____________
________

of law

the district

unless

clearly

are reviewed

de
__

943 F.2d 94, 102 (1st Cir.

In principle, the application of a legal standard to

undisputed

facts

is

also an

issue

of

law,

id., but
___

in

1989,

the

practice the matter is not quite so clear-cut.

Victim vulnerability.
_____________________

Since

provision now

designated

substantially

unchanged, although

commentary

(discussed

states that

is

pertinent

below).

The

November 1,

U.S.S.G.

to

3A1.1(b) has

the

recent change

issue

black letter

a two-level increase in

of

remained

in

"targeting"

of section

3A1.1(b)

the defendant's offense

level must be imposed:

[i]f the defendant knew or should have known that a


victim of
to

the offense was unusually vulnerable due

age, physical

victim

was

or mental

condition, or

otherwise particularly

the criminal conduct.

the

that a

susceptible to

-4-4-

The presentence report

applied

to

objections,

patients

Gill.

the

As

proposed that the adjustment

amended

report reasoned

with whom

difficulties, mental

to

reflect

that

Gill

he would

be dealing

health

disorders and

rulings

knew that

be

on

the

"had psychological

substance

abuse

problems."

Accordingly, the probation officer said that Gill

knew

his

that

victims were

vulnerable

targeted them because of their

to

play the part

of a

and

"specifically

`vulnerability' by [choosing]

person who

treats such

people with

mental health problems."

At sentencing,

victims "were

that

imposing

to

their

The court

such

an

F.3d

adjustment

175, 180-81

United States
_____________

seeking

cited

providing medical services.

33

court

especially vulnerable

gave rise

services."

the district

(2d

because of their

and their

decisions

on

concluded that

needs

receiving

in other

individuals

the

of

circuits

fraudulently

See United States v. Echevarria,


___ _____________
__________

Cir.

v. Bachynsky, 949
_________

1994) (unlicensed

doctor);

F.2d 722, 735-36

(5th Cir.

1991) (physician making false

diagnoses), cert. denied,


____________

506

U.S. 850 (1992).

Gill disputes the district court's adjustment on several

grounds.

He argues that the finding of vulnerability must be

based on

evidence as to

membership

in a

class.

individuals, rather than

He

denies

victimized were especially vulnerable.

-5-5-

that the

upon mere

patients

he

Finally, he says that

he

did

not

"target"

vulnerability, a

based

victims

requirement

on commentary

related; the

the

language.

on

he imputes

The

account

of

to

guideline

the

first

last we discuss separately in

their

two claims

are

the next section

of this opinion.

The vulnerable

victim guideline is

primarily concerned

with the impaired capacity of the victim to detect or prevent

the

crime, rather than with the quantity of harm suffered by

the victim.

The latter

other
_____

provisions of

upward

departures

the

where

aggravation is dealt

guidelines,

the

crime

with in

five

expressly

permitting

resulted

in

death,

significant

special

physical

injury, extreme

property damage,

injury or

prolonging of

5K2.1, .2, .3, .5, .8.

or

the

pain or

psychological injury,

gratuitous infliction

humiliation.

of

U.S.S.G.

As United States v. Kaye, 23 F.3d 50,


_____________
____

54 (2d Cir. 1994), explained:

[T]he courts appear

to have

the phrase "susceptible

interpreted

to the

criminal

conduct" as emphasizing that a particular


victim

was

less

likely

to

thwart the

crime,

rather than more likely to suffer

harm if the crime is successful.

Thus,

mental

the issue here is whether the patients at the two

health

facilities

account of their condition,

average citizen

where

Gill

practiced

were,

on

substantially less able than the

to protect themselves against

Gill's fraud.

There is nothing in the presentence report or in the district

judge's

comments

that suggests

a misunderstanding

on this

-6-6-

point.

However, we stress the focus of the

guideline at the

outset because one cannot measure degrees of vulnerability or

susceptibility

without

some

notion

of

vulnerability or susceptibility is at issue.

what

kind
____

of

Even

thus narrowed,

our case

is

peculiarly difficult

because Gill was dealing with a group, made up of individuals


_____

about whom we know

fall

almost nothing beyond the fact

that they

into a class of persons, namely, those who visit mental

health

centers for

have or think

counseling and

they have some

therefore are

likely to

emotional or mental

problem--

which may afflict the patient or a related non-patient.


__

Gill

argues that in such a case it is improper for a vulnerability

finding to be based on

membership in a class rather

than on

evidence as to a specific individual.

Appeals

courts have

been

rather more

aside determinations of vulnerability

basis

than when

the focus

was on

willing to

set

made solely on a class

the susceptibility

of a

specific individual.

United States v. Rowe, 999 F.2d 14, 16_____________


____

17 (1st Cir. 1993).

But, as we also said in Rowe, this is in


____

no way a fixed rule.

Id. at 17.
___

In some cases the inference

to be drawn from the class characteristics may be so powerful

that there can be little doubt about unusual vulnerability of

class members within the meaning of section 3A1.1.

The

are

guideline makes

permissible

by

clear that

saying

in

-7-7-

its

"class" determinations

commentary

that

the

adjustment

cancer

cases

would apply

cure.

U.S.S.G.

have

upheld

determinations.

518, 522-23

F.3d

at

McDermott,
_________

teenagers);

to someone

3A1.1(b), comment.

upward

adjustments

an ineffective

n.2.

based

Numerous

on

group

See, e.g., United States v. Malone, 78


_________ _____________
______

(11th Cir.

180-181

29

who sold

1996) (cab drivers);

(medical

F.3d

404,

patients);

411

(8th

United States v. Peters, 962


_____________
______

F.3d

Echevarria, 33
__________

United
States
_______________

Cir.

1994)

v.

(black

F.2d 1410, 1417-18

(9th

Cir.

1992)

(people

with

poor

credit

histories);

Bachynsky, 949 F.2d at 735 (medical patients).


_________

In Rowe, the primary subjects of the fraud were business


____

entities, and, without knowing more about any company, it was

hard

for us to see

fraud.

how they were

The more recent case

F.3d 9 (1st

Cir. 1996), also

different.

There,

directed

15-16.

"unusually" vulnerable to

of United States v. Feldman, 83


_____________
_______

this court

against only one or

relied upon by Gill,

was concerned

is quite

with

a crime

two specific victims.

Id. at
___

To resort to a single, class-based characteristic in

such a case is to prefer the less complete picture

complete one readily available.

to a more

Yet

even

characteristic

as to settle the

commentary

robbery

in

one-victim

case,

single

"class"

could be so powerful a proof of vulnerability

issue without more.

Indeed,

the guideline

suggests it would be enough to show that an armed

victim was

confined to

-8-8-

a wheelchair.

U.S.S.G.

3A1.1(b), comment. n.2.

individual rest on an

In truth, many inferences

about an

implicit generalization about a class.

Everything depends on the strength of the inference.

In our

own case,

the government could

have simplified

matters if it had offered evidence from some of Gill's former

patients

as

to their

concerns about

why

from

might wish

considerations

events, the government

that many

At the

privacy and privilege make

the prosecutor

apart

own conditions.

to avoid

of time

was free to

such patients would be

and

same time,

it pretty obvious

this course--quite

expense.

In all

rest upon the

inference

highly vulnerable, leaving

it to the sentencing judge to agree or disagree.

In

conclude

our

view,

based on

sentencing

general

judge

knowledge that,

could

reasonably

in the

typical

situation,

at least a fair number of patients at a community

mental health center are commonly under significant emotional

stress.

True, some

patients might be free of stress

suppose this to be generally true is unrealistic.

in mental

that

health matters

most people

reason, it

treat

is a step

Counseling

often involves disclosing

as private

that many are

and,

but to

if for

likely to take

affairs

no

other

only to

cope with substantial strains.

The records revealed that Gill had treated many

patients and that a number

is thus

safe to infer

of them had multiple visits.

that at

-9-9-

least some of

It

these victims

were under significant stress

Gill's fraud.

and so unusually vulnerable to

It seems to us evident that Gill could foresee

the risk sufficiently to meet the guideline's "knew or should

have known" standard.

Id.
__

Skillman, 922 F.2d 1370, 1378


________

502 U.S. 922 (1991).1

3A1.1(b).

See United States v.


___ ______________

(9th Cir. 1990), cert. denied,


_____ ______

Ours would be a different case if Gill had seen only one

patient and we

knew nothing

about that individual.

Yet

different problem would be presented if Gill had accepted the

general

inference as

that his clinic


___

unlikely

to most

clinics but

treated only persons with a

to involve

much patient

stress.

offered evidence

special problem

But neither

these variations is presented, and there will be time

of

enough

to deal with them, and many other variations, as cases arise.

Targeting.
_________

Gill

makes a

separate complaint

section 3A1.1 enhancement was erroneously applied

did not

"target"

unusual

vulnerability.

proposition that

or select

He

his

victims because

cites several

this motivation

cases

is a additional

that his

because he

of

for

their

the

requisite

element.

3A1.1

Until

stated

November

that

the

1995, the

section was

commentary to

applicable

section

"where

an

____________________

1This contrasts

with the

situation,

described by

the

guideline commentary, in which one of many victims happens to


be vulnerable by some
the

fraud

comment.

and largely
n.2

circumstance accidental in relation to


unforeseen.

(enhancement

U.S.S.G.

not applicable

to

3A1.1(b),
purveyor

of

fraudulent securities to general public if one victim happens


to be senile).

-10-10-

unusually

vulnerable victim

activity by the

is

defendant."

made a

U.S.S.G.

target of

3A1.1,

criminal

comment. n.1

(Nov. 1994).

This commentary language was

Commission in

section

1995).

deleted

by the Sentencing

November 1995 to "clarif[y]

the operation" of

3A1.1.

U.S.S.G.

But Gill's

amendment date.

previously

So,

required

App.C, Amend.

521, at

430 (Nov.

criminal conduct took place prior

to the

if the 1995 amendment

did away with

element

motivation,

of targeting

the

prior guideline might have to be followed under ex post facto


_____________

principles.

See
___

U.S.S.G.

1B1.11;

United States
______________

Prezioso, 989 F.2d 52, 53-54 (1st Cir. 1993).


________

v.

Gill's

argument about

opinion in

Rowe.
____

fraudulent

health

businesses, that

The

targeting leans

Rowe case
____

insurance

were

not,

involved a scheme

policies

in our

to

When the

government said that some of

patients might have

insured they

that

there

victims."

was no

easily switch

"special

small

to

be

999 F.2d at

the employee-

been unusually vulnerable--because

could not

once

companies--we replied

targeting

[by Rowe]

of

such

Id. at 17.
___

The confusion

making, but

shown

Rowe,
____

our

to sell

various

opinion,

unusually vulnerable under section 3A1.1.

16-17.

heavily on

is understandable, and wholly

it does not

help Gill.

All that we

of our own

meant was

that the case might

have been different if the

Rowe's fraud

-11-11-

had involved

patients

direct dealings between Rowe

and the employee-

whereby the success of his scheme had depended upon

the latter's

vulnerability.

See, e.g.,
___ ____

Bachynsky, 949 F.2d


_________

at 735 (upholding enhancement against physician who submitted

false claims to insurers

after seeing vulnerable

patients).

In short, the reference

to targeting in Rowe had


____

nothing to

do

separate and

with laying

down a

that the primary subject

additional requirement

of the fraud be a "target," as well

as foreseeably vulnerable to an unusual degree.

Although the

requirement

guideline,

of

is

guideline: to

more

circuits are divided,2

"targeting,"

at

673, 676

with the

punish more

culpable and

deterrence.

odds

even

under

evident

the pre-amendment

purpose

severely conduct that

to protect

such victims

See, e.g., United States v.


_________ ______________

(10th Cir.),

such an additional

cert. denied,
_____ ______

United States v. Morrill, 984

of

the

is morally

by adding

more

Brunson, 54
_______

F.3d

116 S.Ct. 397

(1995);

F.2d 1136, 1137-38 (11th

Cir.

_____________

1993).

_______

Further, to require subjective motivation undermines

the guideline's own lesser scienter requirement, namely, that

the defendant

"knew or

should have known"

of the

victim's

unusual vulnerability.

____________________

2Compare United States v. O'Brien, 50


_______ ______________
_______
(9th Cir.

1995) (declining to impose

F.3d 751, 755-56

a scienter requirement

of targeting beyond the "knew or should have known" standard)


with
____
1995)

United States v. Holmes,


_____________
______
(discussing

United States v.
______________

additional
Smith, 39
_____

60 F.3d 1134,
targeting
F.3d 119,

(adopting targeting requirement).

-12-12-

1136 (4th Cir.

requirement),
124 (6th

and
___

Cir. 1994)

In the present case,

the main subjects of

Gill's fraud

include both

the patients

with whom he

dealt directly

those

parties

were billed,

such

third

companies.

that

It is

the former

who

private

insurance

a reasonable, indeed compelling, inference

include at

least some

vulnerable and were foreseeably so.

guideline, pre

as

and

who were

That is enough under the

and post amendment, regardless

motivation.

If

Rowe
____

has

unusually

confused

of Gill's own

matters,

as

apparently it has, we are happy to set the record straight.

Abuse of Position of Trust.


___________________________

Gill also argues

that the

district court erred in enhancing his sentence under U.S.S.G.

3B1.3.

"if the

trust

That section provides for

defendant abused

. . . in

a two-level enhancement

position of

a manner that

public or

private

significantly facilitated the

commission or concealment of the offense."

U.S.S.G.

3B1.3.

Thus, the district court must first decide that the defendant

occupied a position of trust and then

position to

facilitate or conceal

find that he used that

the offense.

See United
___ ______

States v. Santiago-Gonzalez, 66 F.3d 3, 8 (1st Cir. 1995).


______
_________________

Here

the district

court concluded

real life terms," Gill occupied

that, at

least "in

a position of trust relative

to his

the

counseling patients, and that Gill

patients'

psychologist to

both

reliance

on

further his

his

took advantage of

claimed

fraud scheme.

findings, claiming that he

did not hold

status

as

Gill challenges

a position of

-13-13-

trust as intended

by the

guideline, and that

there was

no

evidence that he abused his position.

Were

status

Gill a

as a

fraud or

there

mental health

doubt

"Effective

atmosphere

willing

licensed psychologist

other crime upon

is no

apply.

duly

perpetrate some

his patients and

their insurers,

that section

3B1.3's enhancement

psychotherapy

a frank

his

professional to

of confidence and

to make

who used

. .

depends

trust in which

upon

an

the patient is

and complete disclosure

of facts,

emotions, memories, and

fears."

Ct.

The guideline phrase "private trust"

1923, 1928 (1996).

readily describes

Jaffee
______

would

the relationship

v. Redmond, 116
_______

of a psychologist

S.

vis a

vis his or her patients.

Gill argues that because

he did not legitimately occupy


____________

the position

of counselor, he

under section 3B1.3.

one other circuit.

did not "hold"

This argument

has persuaded at

a section 3B1.3 enhancement

who falsely held

himself out

that

do not believe

he

purports

commentary."

We

to

as a

on a defendant

physician, stating

that an imposter

occupy within

that

`holds' the position

the

meaning

of

this

It does not persuade us.

appreciate that read

be taken to

least

In Echevarria, 33 F.3d at 181, the Second


__________

Circuit reversed

"[w]e

that position

refer only

literally, the guideline could

to one who

legally or

legitimately

occupied a position of trust, presumably the usual case.

-14-14-

But

the

threat

present

that animates

the

guideline may

as

easily be

where the position is occupied by an imposter.

threat--illustrated by the

trust funds

lawyer who bilks a

or the doctor who sexually

that wrongdoer's

That

client out of

abuses a patient--is

position facilitates the crime, reduces the

chance of detection, or both.

See U.S.S.G.
___

3B1.3, comment.

n.1.

The

threat is

equally

present whether

the lawyer

or

doctor is fully licensed or is a pretender sporting a vest or

white coat and displaying a fake diploma.

wrongdoer is

using the ostensible position

conceal the crime, just as

In both cases, the

to facilitate or

Gill's extraction of payments was

facilitated by his claim to be a licensed counselor.

Our own

cases have stressed the practical realities rather than legal

title in applying this adjustment.3

This is also the view of

the Tenth Circuit in United States v. Queen, 4 F.3d 925, 929_____________


_____

30 (10th Cir. 1993).

The district court here found that Gill did acquire, "in

real life terms . . . by virtue of his conduct" a position of

trust relative to his patients.

"Trust" alone, of course, is

____________________

3See United States v. Newman, 49 F.3d 19 (1st Cir. 1995)


___ _____________
______
(section 3B1.3

enhancement upheld

defrauded a

corporation that

despite the

fact that he

authority

over

the

police

officer

subject

a defendant

was under his

had never properly

corporation);

Innamorati, 996 F.2d 456,


__________

against

cf.
__

who

actual control,
obtained legal

United
States
_______________

v.

489-90 (1st Cir.) (former registry


______
to

enhancement

if

prior position

facilitated crime), cert. denied, 510 U.S. 955 (1993).


____________

-15-15-

not

enough; there

pretending,

must

also

be

Gill effectively occupied

as the present guideline is concerned.

Affirmed.
________

"position."

But

by

the "position" so far

-16-16-