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A cardiologist who was convicted of mail and wire fraud for his submission of faulty reports on behalf of claimants to the Fen-Phen settlement trust could shave a year off of his sentence, the Third Circuit has ruled.

The U.S. Court of Appeals for the Third Circuit upheld the sentence enhancement imposed by the district court due to the doctor’s abuse of his position of trust and his use of a special skill in the commission of the crime, but it held that the district court erred by applying a sentencing enhancement for his leadership role due to his supervisory position over a technician in his office.

Abdur Razzak Tai was sentenced to six years in prison, and ordered to pay $4.6 million in restitution, after a jury found him guilty on all counts. The appeals court remanded the case for resentencing on the one issue of the enhancement for Tai’s leadership role.

In order to apply that two-level sentence enhancement, the district court must find that the supervised person is criminally responsible. That finding is absent in this case, Third Circuit Judge Patty Shwartz said. She wrote the opinion on behalf of the three-judge panel.

“Under our precedent, the culpable participation of the person being supervised is central to the applicability of an upward adjustment for role,” Shwartz said. “The question here then is whether the absence of such a finding of criminal culpability of a participant constitutes plain error. We conclude that it does.”

Application of the enhancement requires prosecutors to prove that the person or people who are subordinate to the leader are criminally responsible for the offense, although they don’t have to be convicted, according to the opinion.

Tai had employed a technician who had done the review of about 1,000 of the echocardiograms, called echoes for short, when he didn’t have the time to do it himself, according to the opinion. During depositions, the technician had testified that she didn’t know if Tai had read the echoes himself before signing the physician’s report, “but she ‘would assume that he did because there were several times that [she] even asked him’ if he agreed with her conclusions and he sometimes told her she was wrong,” Shwartz said.

“For one particular lawyer representing Fen-Phen claimants, Tai signed more than 1,400 Green Forms, and of the 1,173 of those Green Forms that were audited or reviewed, only 109 were approved,” Shwartz said. Green Forms are the reports that are required to show that claimants have the heart condition that qualifies them to collect from the settlement trust.

Tai had estimated that he had read 12,000 echoes to prepare reports for claimants’ collection from the trust and that he was owed more than $2 million for his work, according to the opinion.

“For example, one attorney agreed to pay Tai a $100 to $150 fee for each echo read, plus an additional ‘expert fee’ of $900 to $1,000 for each Green Form that the trust approved,” Shwartz said in a footnote.

Tai had initially objected to the use of the leadership-role enhancement, but withdrew the objection after seeing the prosecution’s sentencing memorandum, Shwartz said, explaining that the prosecution, then, didn’t present evidence to support the enhancement at sentencing.

The district court explained that it would add the sentencing enhancement “because he was an organizer, leader, a manager or supervisor in criminal activity, based on his employment of a non-physician technologi[st] whom he directed to read echocardiograms and then prepared and signed a physician’s echocardiogram report falsely implying or asserting the conclusions were the result of his own observations and conclusions,” according to the Third Circuit opinion.

“Absent from this recitation is any statement about whether the ‘technologist’ had the requisite state of mind to be deemed criminally responsible,” Shwartz said.

That error affects Tai’s substantial rights since it affects the length of his sentence, Shwartz said.

The two-level enhancement brought Tai’s offense level to a 29, which carries an advisory range of 87 to 108 months, according to the opinion. But, the district court made a downward variance of two offense levels because of Tai’s age and health and settled on a sentence of 72 months. Without the enhancement, Tai’s level would have started at 27 and, with the same downward variance, would have gone to a 25, which carries a recommended range of 57 to 71 months, Shwartz said.

“If the district court had again chosen to sentence near the bottom of that range, then the sentence could have been less than five years, which is a year shorter than the sentence he received,” Shwartz said.

The appeals court remanded the case for the district court to make a finding of fact on the culpability of Tai’s subordinates in order to “ensure the integrity of the proceedings,” Shwartz said.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

(Copies of the 22-page opinion in United States v. Tai, PICS No. 14-0675, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)