United States Court of Appeals
For the First Circuit
No. 04-1915
UNITED STATES OF AMERICA,
Appellee,
v.
MARVIN D. HELDEMAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge
Before
Boudin, Chief Judge,
Campbell and Cyr, Senior Circuit Judges.
John E. MacDonald with whom Larochelle & MacDonald, Inc. and
Ronald Kliegerman were on brief for appellant.
Donald C. Lockhart with whom Robert Clark Corrente, United
States Attorney, Luis M. Matos and Michael P. Iannotti, Assistant
United States Attorneys, were on brief for appellee.
March 29, 2005
BOUDIN, Chief Judge. In March 2004, Marvin Heldeman pled
guilty in Rhode Island federal district court to one count of
conspiracy to commit health care fraud, 18 U.S.C. § 371 (2000),
seventeen counts of health care fraud, id. § 1347, three counts of
conspiracy to distribute drugs, 21 U.S.C. § 846 (2000), and three
counts of drug distribution, id. §§ 841(a)(1), (b)(1)(C). In June
2004, the court sentenced Heldeman to 46 months' imprisonment, and
ordered that his residence be forfeited for having "facilitated"
his drug distribution offenses. Id. § 853(a)(2). On appeal,
Heldeman challenges the district court's forfeiture order and seeks
a remand for resentencing under United States v. Booker, 125 S. Ct.
738 (2005), and United States v. Antonakopoulos, 399 F.3d 68 (1st
Cir. 2005).
Between October 2000 and December 2002, Heldeman, a New
York dermatologist, wrote prescriptions for steroids and Oxycodone
(a highly addictive and very strong pain medication) for a number
of individuals--many of whom were bodybuilders and some of whom
Heldeman had never seen or treated. These prescriptions were
medically unnecessary and were of the sort not typically prescribed
by dermatologists. For one bodybuilder, Timothy DiPaola, the
prescriptions were made out in the names of DiPaola's friends, so
that DiPaola could purchase the drugs with his friends' insurance
and then use them himself. Heldeman also took phone calls from
pharmacies to confirm the validity of the prescriptions he had
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written, and instructed his office manager and nurse to do the same
if pharmacists called.
In return for writing prescriptions, Heldeman received
various services of a sexual nature from his clients. These
included having his clients pose for him in various states of
undress while Heldeman took photographs or videotaped them.
Roughly half of the prescriptions were written at Heldeman's home
and some of the photography or videotaping occurred there; the pads
on which Heldeman wrote the prescriptions that formed the basis for
his indictment bore his home address; and Heldeman kept business
cards in his apartment bearing his home phone number and the
inscription "Dr. Marvin, The Bodybuilder's Friend."
On appeal, Heldeman argues that the forfeiture of his
residence was error. The pertinent portion of 21 U.S.C. § 853(a)
requires that anyone convicted of a controlled substance offense
punishable by over one year's imprisonment "shall forfeit to the
United States . . . any of the person's property used, or intended
to be used, in any manner or part, to commit, or to facilitate the
commission of, such violation." We have held that identical
language in the civil forfeiture statute, id. § 881(a)(7), requires
a "substantial connection" between the property at issue and the
drug activity charged. See United States v. Desmarais, 938 F.2d
347, 353 (1st Cir. 1991) (collecting cases). Heldeman claims that
same standard should be applied here.
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Whatever the exact degree of connection required by the
criminal forfeiture statute, see United States v. White, 116 F.3d
948, 950-52 (1st Cir. 1997) (leaving open the issue), the evidence
provided to the district court in this case amply supported the
forfeiture. All six of the drug offenses with which Heldeman was
charged involved prescriptions written in his apartment. His
apartment served as a base of operations for his crime just as
surely as does a residence where drugs are actually delivered or
stored. See Desmarais, 938 F.2d at 353.
Nor is it any defense to claim (as Heldeman does) that
his activities could have been undertaken elsewhere. The statute
requires only that the property "facilitate[]" the offense.
Heldeman’s proffered reading would cripple the statute and defeat
the evident congressional intent to forfeit property used in
committing the crime. See White, 116 F.3d at 950, 952; United
States v. Rogers, 102 F.3d 641, 648 (1st Cir. 1996), cert. denied,
522 U.S. 879 (1997). It would also be at odds with our prior case
law on civil forfeiture, which contains no suggestion that the
property must be the only means of achieving the defendant's
criminal goals in order to merit forfeiture. See, e.g., United
States v. Parcel of Land and Residence at 28 Emery St., Merrimac,
Mass., 914 F.2d 1, 4-5 (1st Cir. 1990) (collecting cases).
Heldeman may not be what the average person thinks of when speaking
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of a "drug dealer," but he does not dispute that his acts are
within section 841 so the forfeiture provision applies.
Forfeitures are subject to the Eighth Amendment’s
excessive fines clause "if they constitute punishment for an
offense." United States v. Bajakajian, 524 U.S. 321, 328 (1998).
Here, forfeiture was "imposed at the culmination of a criminal
proceeding and requires conviction of an underlying felony," id.,
and thus was punishment for the offense. See also United States v.
Sherman, 262 F.3d 784, 795 (8th Cir. 2001) (subjecting § 853(a)(2)
forfeiture to excessive fines analysis), cert. denied, 537 U.S. 940
(2002), and cert. denied, 537 U.S. 1095 (2002); United States v.
Dicter, 198 F.3d 1284, 1292 (11th Cir. 1999) (same), cert. denied,
531 U.S. 828 (2000). Heldeman says the forfeiture was excessive.
A forfeiture will violate the Eighth Amendment's
prohibition only if it is "grossly disproportional to the gravity
of the defendant's offense." Bajakajian, 524 U.S. at 336-37. The
case law invites us to consider as pertinent factors (1) whether
the defendant falls into the class of persons at whom the criminal
statute was principally directed; (2) other penalties authorized by
the legislature (or the Sentencing Commission); and (3) the harm
caused by the defendant. Id. at 337-40. Our review of
disproportionality is de novo, with due deference given to the
district court's factual findings. Id. at 336 & n.10.
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Heldeman's equity in his residence was just under
$900,000. By contrast, the statute and sentencing guidelines
provide for a penalty of up to $6 million for his offense conduct
(a $1 million fine for each of six counts). See 21 U.S.C. §
841(b)(1)(C); U.S.S.G. § 5E1.2(c)(4). The forfeiture here amounts
to a mere 15 percent of the maximum total fine permitted, and we
are not impressed with Heldeman’s reliance upon the sentimental
value of his house. Bajakajian involved a forfeiture exceeding the
guidelines level by a factor of 70. See 524 U.S. at 339-40.
Some circuits have treated a forfeiture of less than the
statutory or guideline maximum as strongly suggesting or conclusive
of compliance with the Eighth Amendment.1 However this may be,
there are no strong countervailing arguments in favor of Heldeman
that would warrant a different result. Heldeman's offense conduct
was not typical of drug dealing and did not involve guns or
violence; but it was calculated, repeated, and done for Heldeman's
benefit rather than misguided sympathy, and facilitated access to
dangerous substances in the absence of medical need.
Turning to sentencing, Heldeman concedes that he did not
raise a Sixth Amendment argument below in any of its variations or
1
See, e.g., United States v. Bernitt, 392 F.3d 873, 880-81
(7th Cir. 2004), petition for cert. filed (U.S. Mar. 15, 2005) (No.
04-9247); United States v. Wallace, 389 F.3d 483, 486 (5th Cir.
2004), cert. denied, 125 S.Ct. 1426 (2005); United States v. Moyer,
313 F.3d 1082, 1086 (8th Cir. 2002); Dicter, 198 F.3d at 1292;
United States v. 817 N.E. 29th Dr., Wilton Manors, Fla., 175 F.3d
1304, 1310 (11th Cir. 1999), cert. denied, 528 U.S. 1083 (2000).
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labels. Accordingly, only plain error review is available. Here,
the use of mandatory guidelines at sentencing was "error" and
"plain" (applying the law as it stands today) but prejudice and
fundamental unfairness remain to be shown. See United States v.
Olano, 507 U.S. 725, 732-36 (1993); Antonakopoulos, 399 F.3d at 77.
With regard to these last two concepts, our principal
concern in these Booker "pipeline" cases is with the likelihood
that the defendant would have received a lesser sentence in a post-
Booker regime of advisory guidelines. Antonakopoulos, 399 F.3d at
81. Heldeman points to his advanced age and physical condition.
Heldeman is seventy-two years old and suffers from maladies
including diabetes, prostate problems, vision problems, and
brachial plexus palsy. His physician described his medical
condition as "unstable" and in need of monitoring. Further, his
unlawful activities--although serious--appear to have been the
exception to an otherwise lawful medical practice.
The record contains some indication that the district
court felt itself constrained by the guidelines. In particular,
the court noted that Heldeman's arguments were "legitimate" and
"somewhat mitigating," and should be considered in determining
where within the guidelines range Heldeman's sentence should fall;
but it concluded that these factors "do not approach what is
required to justify a downward departure," that age and physical
condition were both discouraged as grounds for departure, and that
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Heldeman's traits, although worthy of consideration, were
insufficient to take the case outside the "heartland" of the
guidelines.
Guided by traditional plain error doctrine and Justice
Breyer's specific reference to it in Booker, this court has adhered
to the analysis mandated by Olano where dealing with unpreserved
errors--although we have been generous in other respects, given the
peculiarities of the situation created by Booker. The court has
offered to treat almost any colorable claim in the district court
as preserving the Booker issue and avoiding plain error
requirements. See Antonakopoulos, 399 F.3d at 76. Even where
plain error is required, we have recognized that a district judge
may well not have expressed his or her reservations because the
guidelines made them hopeless, and so invited proffers by the
defendant as to what the defendant might have said if the
guidelines had been advisory at the time.
Consonantly, we are inclined not to be overly demanding
as to proof of probability where, either in the existing record or
by plausible proffer, there is reasonable indication that the
district judge might well have reached a different result under
advisory guidelines. After all, it will be easy enough for the
district judge on remand to say no with a minimum expenditure of
effort if the sentence imposed under the pre-Booker guidelines
regime is also the one that the judge would have imposed under the
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more relaxed post-Booker framework. This opinion has been
circulated to the other active members of the court.
In the present case, we are satisfied that the district
judge might well have given a different sentence if the advisory
guideline regime had been in force and accordingly vacate the
sentence and remand for resentencing. Given the standard we are
using, the remand should not be taken as either a suggestion or a
prediction that the sentence will necessarily be altered. The
forfeiture is affirmed. The sentence of imprisonment and
supervised release is vacated and that aspect of the judgment
remanded for further proceedings in accordance with this decision.
It is so ordered.
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