In United States v. Moss, No. 19-14548 (Apr. 12, 2022) (William Pryor, Luck, Ed Carnes), the Court affirmed Mr. Moss’s convictions, sentence, and restitution amount.
Mr. Moss was charged with one count of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and six counts of health care fraud, in violation of 18 U.S.C. § 1347. After a jury trial, he was convicted of all counts. He was sentenced to 97 months imprisonment, ordered to forfeit $2,507,623, and to pay $2,256,861 in restitution. He appealed his convictions and sentence, as well as the restitution and forfeiture amounts.
Mr. Moss raised three challenges to his convictions, which the Court found to be without any merit.
As for his sentence, Mr. Moss challenged the loss amount used to determine his sentence, the dollar amount he had to pay in restitution, and the forfeiture amount. The Court found no clear error in the district court’s determinations. With regard to the forfeiture determination, the Court found that forfeiture ordered under 18 U.S.C. § 982(a)(7)–“forfeit property, real or personal, that constitutes or is derived, directly or indirectly, from gross proceeds traceable to the commission of the offense”–encompasses the proceeds Mr. Moss received for providing legitimate services. In so holding, the Court applied a “but for” test, asking, but for his Medicare fraud, would Mr. Moss have been entitled to collect proceeds for his legitimate services? The Court held no.