Judges: Easterbrook
Filed: Sep. 21, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-2962 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT KOLBUSZ, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 782 — John Z. Lee, Judge. _ ARGUED SEPTEMBER 20, 2016 — DECIDED SEPTEMBER 21, 2016 _ Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. EASTERBROOK, Circuit Judge. A jury convicted Robert Kol- busz of six counts of mail
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-2962 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT KOLBUSZ, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 782 — John Z. Lee, Judge. _ ARGUED SEPTEMBER 20, 2016 — DECIDED SEPTEMBER 21, 2016 _ Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. EASTERBROOK, Circuit Judge. A jury convicted Robert Kol- busz of six counts of mail o..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2962
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ROBERT KOLBUSZ,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 782 — John Z. Lee, Judge.
____________________
ARGUED SEPTEMBER 20, 2016 — DECIDED SEPTEMBER 21, 2016
____________________
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge. A jury convicted Robert Kol‐
busz of six counts of mail or wire fraud, see 18 U.S.C.
§§ 1341, 1343, and he was sentenced to 84 months’ impris‐
onment (the same term on each count to run concurrently)
plus about $3.8 million in restitution.
Kolbusz, a dermatologist, submitted thousands of claims
to the Medicare system and private insurers for the treat‐
2 No. 15‐2962
ment of actinic keratosis, a skin condition that sometimes
leads to cancer. He received many millions of dollars in
payments. The evidence at trial permitted a reasonable jury
to conclude that many if not substantially all of these claims
could not have reflected an honest medical judgment—and
that the treatment Kolbusz claimed to have supplied may
have failed to help any patient who actually had actinic kera‐
tosis. We need not recount the evidence. Kolbusz put on a
vigorous defense, but the record permitted the jury to find
that he committed the crimes as charged.
His lead appellate argument is that the district judge con‐
structively amended the indictment by permitting the prose‐
cutor to present evidence that he submitted false claims on
behalf of more than six patients. The indictment charged six
particular frauds, so that must be the limit of the evidence,
the argument runs. Yet the indictment charged a scheme to
defraud (that’s what §1341 and §1343 cover). The prosecutor
was entitled to prove the scheme as a whole, and not just the
six exemplars laid out in the indictment. See, e.g., United
States v. Phillips, 745 F.3d 829, 831–33 (7th Cir. 2014); United
States v. Salmonese, 352 F.3d 608, 621 (2d Cir. 2003). Kolbusz
does not point to any decision holding that the prosecution
is forbidden to show that a scheme has more victims than
the number of counts in the indictment, and we could not
find such a decision in an independent search.
After his arrest and indictment, Kolbusz continued to
submit claims to Medicare, and many of these were paid. He
contends that the judge erred in preventing him from intro‐
ducing evidence to that effect. But the judge did not abuse
his discretion in excluding this evidence, which has more to
say about the (lack of) care with which Medicare intermedi‐
No. 15‐2962 3
aries examine physicians’ claims than about the validity of
the charges against him. Kolbusz says that the evidence
would demonstrate his “good faith,” but we do not under‐
stand how—or for that matter why “good faith” in the ab‐
stract matters. See United States v. Blagojevich, 794 F.3d 729,
738–39 (7th Cir. 2015). Kolbusz’s state of mind when he was
submitting claims between 2003 and 2010 (the period cov‐
ered by the criminal charges) was relevant; his state of mind
in later years was not. It would have been regrettable to di‐
vert the trial into an examination of Medicare’s claims‐
processing procedures in 2013 and 2014, rather than whether
Kolbusz knew that he was submitting false claims in 2010
and earlier.
Finally, Kolbusz contends that, when resolving civil liti‐
gation that grew out of his claims for reimbursement, some
of the insurers agreed to waive restitution. He contends that
payments from these insurers should be excluded from the
district court’s calculation. The problem with this argument
is that the United States was not a party to any of the con‐
tracts on which Kolbusz relies. The award of restitution was
entered in litigation between Kolbusz and the United States;
contracts between Kolbusz and third parties cannot control.
So the Supreme Court held in EEOC v. Waffle House, Inc., 534
U.S. 279 (2002), when concluding that arbitration agreements
between employees and employers do not affect the national
government, when it sues as employees’ champion. The
Court concluded that private agreements do not bind the
United States. That’s equally true when the United States
seeks a restitution award, and so multiple courts have held.
See, e.g., United States v. Rizk, 660 F.3d 1125, 1137 (9th Cir.
2011); United States v. Gallant, 537 F.3d 1202, 1250 (10th Cir.
2008); United States v. Karam, 201 F.3d 320 (4th Cir. 2000);
4 No. 15‐2962
United States v. Parsons, 141 F.3d 386, 393 (1st Cir. 1998); Unit‐
ed States v. Sheinbaum, 136 F.3d 443, 448–49 (5th Cir. 1998).
AFFIRMED