PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-1998
_____________
UNITED STATES OF AMERICA
v.
ABDUR RAZZAK TAI,
Appellant
____________
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
(D.C. No. 2-10-cr-00769-001)
District Judge: Honorable Juan R. Sanchez
______________
Argued March 27, 2014
Before: FUENTES and SHWARTZ, Circuit Judges, and
ROSENTHAL, District Judge.*
*
The Honorable Lee H. Rosenthal, United States
District Judge for the Southern District of Texas, sitting by
designation.
(Filed: April 30, 2014)
Paul G. Shapiro, Esq. [ARGUED]
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Peter Goldberger, Esq. [ARGUED]
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellant
______________________
OPINION
______________________
SHWARTZ, Circuit Judge.
Defendant Abdur Razzak Tai appeals his conviction
and sentence for mail and wire fraud in connection with
claims for payment from the Fen-Phen Settlement Trust. Tai
argues that the District Court committed plain error by
implicitly shifting the burden of proof in its “willful
blindness” jury instruction and applying upward adjustments
under the advisory Sentencing Guidelines for abuse of a
position of trust, use of a special skill, and aggravated role.
For the reasons set forth below, we conclude that the District
Court’s jury instruction and its upward adjustments based
upon position of trust and special skill were not in error, but
we will remand to enable the District Court to make the
2
required factual findings concerning whether Tai supervised a
criminally culpable subordinate, which is necessary to award
an aggravated role enhancement.
I
In the late 1990s, individuals who had taken the
prescription diet-drug combination commonly known as Fen-
Phen began filing lawsuits against American Home Products
Corporation (“AHP”), the predecessor of Wyeth, claiming
that the drugs caused valvular heart disease. In 2000, the
United States District Court for the Eastern District of
Pennsylvania approved a class action settlement (the
“Settlement”), which included the establishment of the Fen-
Phen Settlement Trust (the “Trust”), through which Wyeth
paid compensation to class members who demonstrated that
they sustained valvular heart damage.
Financial compensation for these heart conditions was
determined under a pre-established matrix.1 To receive
compensation, claimants were required to provide a recording
of and a physician’s report about an echocardiogram
(“echo”)2 and a document referred to as a “Green Form”3
1
The amount of a claimant’s benefits was determined
by several factors, including the length of time the claimant
used Fen-Phen, the severity of the claimant’s valvular heart
condition, and the claimant’s age.
2
Typically, a technician performed and video recorded
the echoes, and a qualified physician reviewed the video and
the technician’s worksheet setting forth the measurements.
3
The Green Form provided the formulae for
determining if the claimant had a condition that qualified for
3
signed by a board-certified cardiologist or cardiothoracic
surgeon with Level 2 training in echocardiography.4 The
Trust then reviewed the submissions and, when appropriate,
tendered payment.
A representative of the Trust explained that the Trust
relied on the integrity of the physicians signing the reports
and Green Forms to ensure that the claimants actually had
heart conditions that were covered by the Settlement. Both
the Trust and Wyeth had “audit rights,” which allowed them
to have highly trained, board-certified physicians review the
materials submitted to ensure “the tape . . . matche[d] with the
rest of the substantiation.” App. 87. Under the original terms
of the Settlement, only 15% of all claims could be audited. In
November 2002, the District Court ordered that 100% of the
claims would be subject to audit because of concerns about
the bona fides of the claims being submitted.5
compensation. Part II of the Green Form required the
physician to sign beneath a warning that explained that it was
an official court document and the physician was declaring,
under penalty of perjury, that the information on the form was
correct.
4
Level 2 training reflects a high degree of experience
reading and interpreting echoes.
5
On March 15, 2005, the District Court approved an
amendment to the Settlement (the “Seventh Amendment”),
under which Wyeth agreed to create a new supplemental fund
with a separate, faster process for reviewing and paying
claims for which there was documentation that on its face
qualified the claimant for Matrix Benefits. The Seventh
Amendment claims were all subject to medical review.
4
Attorneys who represented certain Fen-Phen claimants
retained Tai, a board-certified and Level 2-qualified
cardiologist, to read echoes and prepare reports to submit to
the Trust. Tai estimated that he read 12,000 echoes for this
purpose, and asserted that he was owed over $2 million
dollars for the services he provided. This amount was based
upon a fee for each echo read and a bonus payment for each
approved payment.6 Most of the Green Forms Tai signed
were submitted before the 100% audit rule was imposed.
Tai acknowledged to law enforcement that in about
10% of the cases, he dictated physician’s reports consistent
with the findings in the technicians’ reports despite knowing
that the measurements were wrong. He also admitted that he
had his technician and office manager, Debbie Patrick, review
about 1,000 of the echoes because he did not have the time to
do the work himself. Patrick testified, via deposition, that she
reviewed “a couple hundred” echoes, App. 605, and provided
Tai with her notes to “help him out” with the volume of
echoes he was asked to review. App. 589-90. Patrick
testified that she did not know whether Tai read the echoes
himself before signing the physician’s report and Green
Form, 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. App.
591-92. 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. A government expert
6
For example, one attorney agreed to pay Tai a $100-
150 fee for each echo read, plus an additional “expert fee” of
$900-1000 for each Green Form that the Trust approved.
5
reviewed a nonrandom sample of the forms Tai submitted for
this attorney and found that, in a substantial number of the
cases, the measurements were not only clearly incorrect, but
were actually inconsistent with a human adult heart.7
Tai was charged in a thirteen-count indictment for
mail and wire fraud, in violation of 18 U.S.C. §§ 1341 and
1343, respectively. The jury found Tai guilty of all charges,
and he was sentenced to concurrent sentences of 72 months’
imprisonment8 and three years’ supervised release, and
ordered to pay restitution of $4,579,663, a fine of $15,000,
and a special assessment of $1,300. Tai appeals.
7
Tai testified that he agreed with these conclusions but
claimed that the signature on the physician reports attributed
to him was not his. Tai’s employees, however, testified that it
was his signature, and, in fact, his office administrator
testified that she had stamped Tai’s signature on the reports
with his permission.
8
The base offense level was 7, 18 levels were added
under U.S.S.G. § 2B1.1(b)(1)(J) (loss was more than $2.5M
but less than $7M), 2 levels were added under U.S.S.G. §
3B1.3 (defendant used a special skill or abused his position of
trust), and 2 levels were added under U.S.S.G. § 3B1.1(c)
(defendant was an organizer, leader, manager or supervisor).
This resulted in an offense level of 29, with an applicable
advisory Guidelines range of 87-108 months. The District
Court then granted a two-level variance following
consideration of the Section 3553(a) factors due to Tai’s age
and health, and lowered the offense level from 29 to 27, with
an applicable Guidelines range of 70-87 months. The Court
sentenced Tai near the bottom of that range to 72 months’
imprisonment.
6
II9
The parties agree that none of the issues Tai presents
were preserved for appeal and that plain error review
applies.10 United States v. Couch, 291 F.3d 251, 252-53 (3d
Cir. 2002) (stating that where no objection to the Guidelines
calculation was preserved at sentencing, it is reviewed for
plain error); United States v. Antico, 275 F.3d 245, 265 (3d
Cir. 2001) (reviewing a jury instruction for plain error where
the challenge on appeal was not raised at trial); Fed. R. Crim.
P. 30(d), 52(b). The defendant bears the burden to establish
plain error. United States v. Olano, 507 U.S. 725, 734-35
(1993). For reversible plain error to exist, there must be (1)
an error; (2) that is plain; (3) that affects substantial rights;
and (4) which seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Johnson v. United
States, 520 U.S. 461, 466-67 (1997).
9
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231, and this Court has jurisdiction pursuant to 28
U.S.C. § 1291.
10
At argument, the Government for the first time
argued that Tai waived his right to appeal the role
enhancement because he withdrew his objection to its
imposition before sentencing. While we recognize that
withdrawing an objection constitutes a waiver of the right to
appellate review in most instances, we will not foreclose
appellate review in this case, where the Government did not
rely on waiver in its brief and enforcing the waiver rule here
would not serve “the interests of justice.” United States v.
Barrow, 118 F.3d 482, 491 (6th Cir. 1997).
7
III
A. Jury Instruction
We will first address whether the District Court
committed plain error by employing the language of the Third
Circuit’s model jury instruction when instructing the jury
about willful blindness. Tai argues that the model jury
instruction is constitutionally infirm because it shifts the
burden of proof to the defendant to disprove intent.
A willful blindness instruction is typically delivered in
the context of explaining how the Government may sustain its
burden to prove that a defendant acted knowingly in
committing a charged offense. Here, the willful blindness
instruction was delivered after the District Court explained
the elements common to mail and wire fraud, including that
the Government must prove that Tai “acted knowingly with
respect to an element of the offenses.” Supp. App. 824. The
District Court defined “knowingly” as meaning “that the
Government must prove beyond a reasonable doubt that he
was conscious and aware of the nature of his actions and of
the surrounding facts and circumstances as specified in the
definition of the offenses charged.” Id. The District Court
then instructed the jury as follows:
As I just explained, members of the jury,
to find Dr. Tai guilty of mail fraud or wire
fraud, you must find that the Government
proved beyond a reasonable doubt that Dr. Tai
knowingly devised or wil[l]fully participated in
8
a scheme to defraud, and that he acted with
intent to defraud.
Both of these elements involve the
question of whether Dr. Tai had knowledge of
an inaccuracy of the echocardiogram reports
and green form[s] that he signed.
When, as in this case, knowledge of a
particular fact or circumstance is an essential
part of the offense charged, the Government
may prove that Dr. Tai knew of the fact or
circumstance if the evidence proved beyond a
reasonable doubt that Dr. Tai deliberately
closed his eyes to what would otherwise have
been obvious to him.
No one can avoid responsibility for a
crime by deliberately ignoring what is obvious;
thus, you may find that Dr. Tai knew about the
falsity of the echo reports and green forms
based on evidence which proves that, one, Dr.
Tai himself actually subjectively believed that
there -- there was a high probability that the
reports or forms were not accurate, and, two,
Dr. Tai consciously took deliberate actions to
avoid learning about the existence of the falsity.
You may not find Dr. Tai knew that the
reports or forms were not accurate if you find
that the defendant actually believed that the
reports and forms were accurate. Also, you
may not find that Dr. Tai knew the reports and
forms were not accurate if you -- you find only
that Dr. Tai consciously disregard [sic] a risk
that the reports and the forms were not
accurate or that Dr. Tai should have known
9
that the reports and forms were not accurate,
or that a reasonable person will have known
of a high probability that the reports and
forms were not accurate.
It is not enough that Dr. Tai may have
been reckless or stupid or foolish or may have
acted out of accident. You must find that Dr.
Tai himself actually subjectively believed that
there was a high probability that the reports and
forms were not accurate, consciously took
deliberate actions to avoid learning about their
inaccuracy and did not actually believe that they
were accurate.
Supp. App. 828-30 (emphasis added). Tai argues that the
emphasized phrases in the fifth paragraph told the jury that
certain innocent states of mind preclude a finding of
knowledge, and he asserts that this suggests to the jury that it
can find that Tai did not meet the element of knowledge only
if the jury finds those innocent states of mind to have existed.
This in turn, Tai argues, impermissibly shifts the burden from
the government to Tai to disprove his knowledge.
There is no doubt that a jury instruction violates due
process if it fails to place squarely on the Government the full
burden of proving beyond a reasonable doubt the required
mental state for the offense. See Patterson v. New York, 432
U.S. 197, 204-07 (1977). The language of the fifth
paragraph, however, did not impose any burden, implicit or
explicit, on Tai to prove or disprove his knowledge. Rather,
the willful blindness jury instruction as a whole came after
the jury was told the Government bears the burden to prove
that Tai acted knowingly and with an intent to defraud. The
10
willful blindness instruction then explicitly explained that
“the Government may prove” this element through evidence
that established beyond a reasonable doubt that Tai
“deliberately closed his eyes to what would otherwise have
been obvious to him.” Supp. App. 829. The instruction then
explained to the jury what this meant and how it could not
find him guilty if the jury found that Tai actually believed the
forms were accurate, that he disregarded a risk of inaccuracy,
or that he or a reasonable person should have known the
reports were inaccurate. The instruction then reiterated that,
to convict, the jury must find Tai subjectively believed there
was a high probability the reports were inaccurate and he
consciously took steps to avoid learning about their
inaccuracy. These instructions told the jury when willful
blindness does or does not exist, but did not imply in any way
that Tai must present evidence concerning his own beliefs or
knowledge. Thus, there was no implicit or explicit shifting of
the burden of proof to Tai.11
11
Courts have approved similar instructions. United
States v. Flores, 454 F.3d 149, 158 (3d Cir. 2006) (stating that
a willful blindness instruction saying that “[i]f the [evidence]
shows you that [the defendant] actually believed . . .”
reflected the “correct burden of proof”); see also United
States v. Clay, 618 F.3d 946, 952 & n.5 (8th Cir. 2010)
(approving the following in a willful blindness instruction:
“You may not find [defendant] acted ‘knowingly’ if you find
he was merely negligent, careless, or mistaken . . . . You may
not find that [defendant] acted knowingly if you find that he
actually believed . . .” and finding no merit to the argument
that this instruction shifted the burden of proof).
11
Moreover, the District Court told the jury that it could
not find knowledge based on a willful blindness theory unless
the Government proved Tai’s knowledge beyond a reasonable
doubt, and in fact the jury was expressly told at the beginning
of the instructions that Tai never had to prove anything, and
that the burden always remained on the government.12 This
was “more than sufficient to dispel any possible
misconception that [Tai] bore a burden to prove that he was
not willfully blind.” United States v. Flores, 454 F.3d 149,
159 (3d Cir. 2006) (holding that even when the district court
had misspoken and erroneously shifted the burden of proof in
its willful blindness instruction, repeated references to the
government’s burden and the district court’s general
instruction that the burden does not shift ensured that there
was no plain error). When the instructions are read as a
whole, it is clear that no jury could conclude that Tai bore the
burden of proof as to any aspect of his knowledge and the
District Court committed no error in connection with its
willful blindness instruction.
12
The District Court instructed that
[t]he presumption of innocence means that the
defendant has no burden or obligation to present
any evidence at all or to prove that he is not
guilty. The burden or obligation of proof is on
the Government to prove that the defendant is
guilty, and this burden stays with the
Government throughout the entire trial.
Supp. App. 818-19.
12
B. Sentence
1. Abuse of a Position of Trust or use of a Special Skill
under U.S.S.G. § 3B1.3
Tai argues that the District Court plainly erred by
imposing a two-level increase under U.S.S.G § 3B1.3 for
abuse of a position of trust and use of a special skill. Section
3B1.3 allows an increase of two offense levels “[i]f the
defendant abused a position of public or private trust, or used
a special skill, in a manner that significantly facilitated the
commission or concealment of the offense.” Because either
an abuse of a position of trust or use of a special skill supports
the two-level enhancement the District Court applied, Tai
must establish plain error with respect to both to avoid it. We
will examine each separately.
a. Abuse of Position of Trust
To receive an enhancement for abusing a position of
trust, the facts must show that the defendant took “criminal
advantage of a trust relationship between himself and his
victim.” United States v. Hickman, 991 F.2d 1110, 1112 (3d
Cir. 1993). Courts consider the following three factors to
determine whether a position of trust or a trust relationship
exists: “(1) whether the position allows the defendant to
commit a difficult-to-detect wrong; (2) the degree of authority
which the position vests in defendant vis-a-vis the object of
the wrongful act; and (3) whether there has been reliance on
the integrity of the person occupying the position.”13 United
13
Tai argues that the position of trust guideline applies
only to those who were selected or paid for by the entity with
13
States v. Dullum, 560 F.3d 133, 140 (3d Cir. 2009) (internal
quotation marks omitted). Once a position of trust has been
found, § 3B1.3 requires a finding that the defendant “abused
that position in a way that significantly facilitated his crime.”
United States v. Sherman, 160 F.3d 967, 969 (3d Cir. 1998)
(internal quotation marks omitted).
As to the first factor, Tai’s position as a cardiologist
with Level 2 training in echocardiology allowed him to
commit a difficult-to-detect wrong. Only an equally well-
trained physician was permitted to support claims for
payment and only one with access to the same patient
information would be able to detect Tai’s fraud. Indeed, it
would be impossible to verify the accuracy of his reports
whom the trust relationship is said to exist. He provides no
support for this position and, indeed, our precedent makes
clear that this is not a requirement. See United States v.
Sherman, 160 F.3d at 967, 970 (3d. Cir. 1998) (holding that a
doctor was in position of trust with insurance company who
insured his patients). At argument, Tai tried to distinguish
Sherman on the grounds that insurance companies approve
providers under a health insurance plan and are therefore in a
pre-existing trust relationship with those providers. Our
analysis in Sherman, however, did not make this distinction,
as we did not focus on whether the insurance company had
pre-approved the doctor, but instead concentrated on the fact
that “the insurance company relied on the integrity of
Sherman as a doctor holding a medical license.” Id. Like the
insurance company in Sherman, the Trust accepted Tai’s
representations because of his expertise.
14
without a second and similarly qualified doctor reviewing the
same information.14
As to the second factor, Tai had a large degree of
authority over the submission of the claims as he was one of
the physicians authorized to read echoes and sign Green
Forms for submission to the Trust. Moreover, his license and
experience allowed him to do so without supervision.
As to the third factor, the very nature of the Settlement
and structure of the Trust required reliance on the integrity of
the doctors who were signing the physician reports and Green
Forms. To verify the existence of qualifying heart damage,
the Trust depended upon the fact that licensed and board-
certified cardiologists or cardiothoracic surgeons with Level 2
training in echocardiography had reviewed the claimants’
echoes and had prepared and signed reports attesting to the
findings under penalty of perjury. See United States v. Liss,
265 F.3d 1220, 1229 (11th Cir. 2001) (“Of the other circuits
that have addressed whether a physician occupies a position
of trust in relation to Medicare, or a private insurance carrier,
14
Tai relies on United States v. DeMuro, 677 F.3d 550
(3d Cir. 2012), in which this Court held that the “difficult to
detect” factor of the position of trust analysis had not been
proven when defendants had failed to pay taxes that they had
withheld from employees’ paychecks and placed into a trust
fund account the IRS required defendants to maintain. Id. at
555, 567-68. The defendants in DeMuro, however, did not
exercise any professional judgment in their actions vis-a-vis
the IRS trust fund on which the IRS relied, and thus that
situation is very different from the one here.
15
all have answered that question in the affirmative.”). It was
reasonable for the Trust to have relied upon Tai’s
representations both based on his training and the fact that to
have a second doctor “shadow him” would be an
unreasonable expense. Sherman, 160 F.3d at 970.
Finally, Tai’s credentials, and the deference he was
accorded as a result of them, placed him in a position that
facilitated his criminal conduct. His signature gave claimants
the opportunity to receive, collectively, hundreds of millions
of dollars in compensation, yielding more than $2 million in
potential payments to him.
The Trust’s ability to audit claims does not mean that
the Trust limited the authority the doctors were given to
submit claims and the expectation that they would have done
so honestly. See Sherman, 160 F.3d at 970. Rather, the
Trust depended almost exclusively on the professional
integrity of the physicians who submitted reports and signed
Green Forms under penalty of perjury, particularly during the
period Tai submitted most of the claims. Many of Tai’s
reports were signed and completed when the Trust and Wyeth
were entitled to audit up to only 15% of the claims.
Moreover, the audit looked only at whether any reasonable
physician could have reached the conclusion of the certifying
cardiologist that the claimant had the heart condition depicted
in the echocardiogram tape, and thus the audit was geared
toward accepting the medical judgments of the highly trained
physicians who rendered them. Cf. Sherman, 160 F.3d at 970
(upholding abuse of trust adjustment for a physician who
occupied a position of trust with the insurance company to
which he submitted inflated bills and rejecting defendant’s
argument that his authority to act was narrowed by insurance
16
company oversight via regular audits of bills submitted to
them).
For these reasons, the District Court did not plainly err
in finding Tai abused a position of trust and enhancing his
sentence under § 3B1.3.
b. Use of Special Skill
Although the abuse of a position of trust alone is
sufficient to justify the two-level enhancement under § 3B1.3,
we will also examine whether it was plain error to find that
Tai also used a special skill. The following two factors must
be present to support the application of an upward Guidelines
adjustment for use of a special skill: “(1) the defendant
possesses a special skill; and (2) the defendant used it to
significantly facilitate the commission or concealment of the
offense.” United States v. Batista De La Cruz, 460 F.3d 466,
468 (3d Cir. 2006).
Tai admits that he possessed a special skill as a highly
trained doctor but argues instead that he does not meet the
second prong of the test because he did not use his special
skill to commit his crimes as he refrained from exercising his
skill when he did not review the echoes and simply signed the
reports.
Here, Tai’s skill and credentials were the means by
which he could participate in the claims process. Without
them, he would not have been permitted to submit reports to
support claims and collect a fee. Moreover, without his
training, Tai would have lacked the skill to review the videos
of the echoes, would have been unable to determine whether
17
the technicians’ conclusions were correct or incorrect, and
would have been unable to decide whether a particular case
was one that was wrong but that he would “let . . . go.” Supp.
App. 645-46; see United States v. Lewis, 156 F.3d 656, 659
(6th Cir. 1998) (“Unlike simply billing for a procedure that
has not been performed, exaggerating the nature of a medical
procedure does require the use of special medical
knowledge.”). Thus, Tai’s special skill was integral to his
commission of his crimes and the District Court did not err in
finding Tai used a special skill to commit his crime.
2. Aggravated Role under U.S.S.G. § 3B1.1(c) 15
Lastly, Tai argues that his two-level leadership
enhancement under U.S.S.G. § 3B1.1(c) was unwarranted.
Section 3B1.1 allows for a two-level enhancement if the
defendant was “an organizer, leader, manager, or supervisor
in any criminal activity” with fewer than five participants. A
participant is defined as “a person who is criminally
15
If the enhancement under § 3B1.3 had been based
only on the use of a special skill, the role enhancement would
not apply. See U.S.S.G § 3B1.3 (“[I]f this adjustment is
based solely on the use of a special skill, it may not be
employed in addition to an adjustment under § 3B1.1
(Aggravating Role).” (emphasis added)); Hickman, 991 F.2d
at 1112 & n.5 (accord, but noting that the basis for this
distinction is unclear and the connection “between . . .
supervising others and using a special skill [is] elusive”).
Because we conclude that the enhancement is applicable
based upon both the abuse of a position of trust and use of a
special skill, it is appropriate to consider the application of a
role enhancement.
18
responsible for the commission of the offense, but need not
have been convicted. A person who is not criminally
responsible for the commission of the offense (e.g., an
undercover law enforcement officer) is not a participant.”
U.S.S.G. § 3B1.1 cmt. n.1. To be deemed “a participant
under the Guidelines,” the “individual must be criminally
responsible, i.e., s/he must have committed all of the elements
of a statutory crime with the requisite mens rea.” United
States v. Badaracco, 954 F.2d 928, 934-35 (3d Cir. 1992).
Thus, to apply the enhancement, “the government must prove
by a preponderance of the evidence that the [alleged
participants] were criminally responsible participants.” Id. at
935.
Tai initially objected to the inclusion of this
enhancement. After receiving the Government’s sentencing
memorandum, Tai sent a letter to the District Court
withdrawing the objection. As a result, the Government
presented no additional evidence concerning this
enhancement at sentencing and the District Court made no
factual findings concerning its applicability other than to say:
An additional two levels were added pursuant to
the guideline section 3B1.1(c) 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.
19
App. 672-73 (emphasis added). Absent from this recitation
is any statement about whether the “technologist” had the
requisite state of mind to be deemed criminally responsible.
Furthermore, to the extent the District Court incorporated by
reference the explanation in the PSI concerning the role
adjustment, the PSI also lacked facts from which to conclude
that the technologist acted with the requisite mens rea. 16
Under our precedent, the culpable participation of the person
being supervised is central to the applicability of an upward
16
The PSI, which the District Court adopted, stated the
following as the basis for applying the § 3B1.1 adjustment:
Adjustments for Role in the Offense: The
defendant employed a technologist in his office,
identified as D.P., who was qualified to conduct
echocardiograms, but who was not a physician,
and did not have Level II training in
echocardiography. In order to save his own
time, and in abrogation of his obligation to
exercise independent medical judgment, the
defendant directed D.P. to read
echocardiograms that had been submitted by . . .
attorneys who represented persons who claimed
to have been injured as a result of having
ingested Fen-Phen, and then prepared and
signed physician’s echocardiogram reports that
falsely implied or asserted that his conclusions
were the result of his own observations and
conclusions. Pursuant to U.S.S.G. § 3B1.1(c),
two levels are added.
PSI ¶ 54.
20
adjustment for role. 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.
First, the error was plain, as Badaracco has been the
law of this Circuit since 1992, and to sentence Tai based on
his role supervising a technologist in the absence of any
finding about that person’s culpability is contrary to
established law.
Second, the error affects Tai’s substantial rights, as it
affects the length of his sentence. United States v. Pollen,
978 F.2d 78, 90 (3d Cir. 1992). Here, the two-level
enhancement for an aggravated role raised Tai’s advisory
Guidelines offense level from 27 to 29, with an advisory
range of 87-108 months. The District Court varied downward
by two offense levels from that range because of Tai’s age
and health, and imposed a term at the low end of the 70-87
month range of 72 months’ imprisonment. If the offense
level had not been enhanced for an aggravated role, then the
Guidelines offense level would have been calculated at 27,
and if the District Court had applied the same variance, it
would therefore have lowered the offense level to 25, with an
applicable range of 57 to 71 months. 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.
Finally, we exercise our discretion to correct the error
because it increased the sentence without the necessary fact
finding and thereby affected the integrity of the proceedings.
United States v. Saferstein, 673 F.3d 237, 244 (3d Cir. 2012)
(concluding that a higher sentencing range “too seriously
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affects the fairness, integrity, or public reputation of judicial
proceedings to be left uncorrected” (internal quotation marks
omitted)). We are unwilling to speculate about the facts on
which it was based, particularly in a situation like this, where
the decision may have been based on a credibility
determination or where there may be facts beyond the trial
record that may have been considered had Tai not withdrawn
his objection to the role enhancement. Thus, we express no
view as to the applicability of the enhancement but rather, to
ensure the integrity of the proceedings, we will remand for
resentencing to allow the District Court to make factual
findings concerning the culpability of the individuals with
whom Tai worked and impose the enhancement if it finds at
least one of these participants was criminally culpable.
Pollen, 978 F.2d at 90.
III
For the foregoing reasons, we will affirm the judgment
of conviction and vacate and remand the judgment of
sentence to address the applicability of the role enhancement.
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