United States v. Curran

United States Court of Appeals
For the First Circuit

No. 06-2647

UNITED STATES,

Appellee,

v.

JOHN E. CURRAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Boudin, Chief Judge,

Campbell and Stahl, Senior Circuit Judges.

Tamara A. Barney for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Luis M.
Matos, First Assistant United States Attorney, were on brief for
appellee.

May 12, 2008
 CAMPBELL, Senior Circuit Judge. Defendant-appellant John

E. Curran appeals from a final judgment and sentence entered in

United States District Court for the District of Rhode Island

following his conviction after a jury trial on multiple counts of

wire fraud and money laundering. Curran does not challenge his

conviction but rather the court's sentence, claiming his prison

term was excessive because the district court incorrectly

calculated the dollar value of the loss caused by Curran's fraud

and the number of the fraud's victims. Curran also challenges the

court's restitution order. We affirm the district court's

judgment.

Background

Curran held himself out falsely as a medical doctor

although his only training in the healing arts was in naturopathy,

a system of treatment relying on natural remedies. The wire fraud

and money laundering charged in the twenty-three-count indictment

rested upon his posing as a doctor so as to entice patients into

his office where he conducted expensive "diagnostic" tests he was

not licensed to perform and frightened patients into purchasing

dubious, overpriced treatments. Two counts were dismissed at

trial, and the jury convicted Curran on the remaining counts after

eight days of testimony and the admission of several hundred

exhibits. The district court sentenced Curran to 150 months in

prison, in the middle of the Guideline range, stating that Curran

-2-
was a "menace" who "took advantage of [the patients'] worst fears"

and "preyed" on them for reasons of "greed" as he undertook "a scam

of the worst kind." In calculating Curran's base sentence, the

court included substantial enhancements based upon the dollar value

of the losses suffered by the victims of his fraud and their

number, using as the measure of loss the fees his clients had paid

him. The court also ordered Curran to pay restitution of these

fees, totaling $1,425,061.62. This appeal followed.

Facts

Curran, a high school graduate who had previously run a

carpet cleaning business, became a practitioner of naturopathy in

1998. He had trained under a practicing naturopath for two years

and completed a two-week program at a college of naturopathic

medicine in Arkansas. He maintained an office first in Cranston,

Rhode Island and then in nearby Providence. Although he had never

attended medical school and did not have a license to practice

medicine, he held himself out to clients as being a medical doctor

as well as a naturopath. Rhode Island law prohibited Curran from

holding himself out as a licensed physician and from diagnosing

disease or treating it.

At his office, which gave the illusion that it belonged

to a medical professional, Curran wore a lab coat with a name tag

reading, "John Curran, N.D., M.D., Ph.D." In the printed materials

he passed out to clients, including business cards, prescription

-3-
pads, and pamphlets, Curran referred to himself as an "M.D.,"

"N.D.," "physician," "doctor," and a medical school graduate. Just

as he had not earned an M.D., he had also not earned a Ph.D. The

sign on Curran's office door read, "Dr. Curran's Office." The

nameplate on his desk said, "John Curran, ND, MD, Board Certified

Naturopath." Diplomas and certificates bearing his name were

framed on the walls, including one from an unaccredited medical

school Curran had never attended, and one referring to the

purported Ph.D. In a written statement describing the mission of

his office, he said, "GET THEM IN THE DOOR! (w/o looking like a

huxster [sic])." Curran claimed he had cured people of, inter

alia, cancer, liver failure, hepatitis C, paralysis and

infertility. Staff were instructed to tell prospective clients

that the office had an eighty percent success rate.

When new clients came to see him, Curran would perform a

preliminary consultation in which he explained his services.

Curran and his staff would ask what he called "open ended

diagnostic sounding questions" to emphasize the allegedly medical

nature of the discussion. Curran would then charge $950 for a

"full-body assessment," which consisted of measuring the client's

body heat using a thermal imaging device, hooking each one up to a

"BioMeridian Stress Assessment Device" which Curran claimed

evaluated the client's internal organs but which is not approved

for diagnosing disease, and finally, testing the client's blood by

-4-
using a microscope attached to a computer. State and federal

authorities had warned Curran that he was not allowed to perform

such blood tests because he lacked the proper credentials, and

Curran had promised in writing to stop using the procedure. He did

not do so. Curran testified at trial that while before the warning

he had performed a one-to-two hour live blood analysis, after the

warning he switched to performing a shorter, fifteen-minute "live

blood demonstration" he felt he was permitted to conduct. He

conceded that he had not confirmed such authorization with the

Rhode Island Department of Health.

There was testimony by former patients that, after doing

the tests, Curran told them that they were in very ill health. He

said to them that they had blood abnormalities including live

parasites, double-headed parasites, worms, holes, big eggs, green-

tinted cells, red crystals, dying cells, "dormit cells," severely

reduced blood cells, and/or no white blood cells. He also

purported to diagnose deficient body functions or immune systems,

"fungus on the liver," defective lungs and kidneys, or "organs in

distress." On occasion he indicated the existence or possibility

of the existence of a life-threatening illness like cancer. One

doctor testified that Curran's records of the results of some of

these tests were "gibberish." A doctor testified at trial that

while parasites can on rare occasions be found in the blood, such

cases are extremely unusual.

-5-
 There was evidence indicating that Curran's technique

included scaring his clients, telling one young woman that "at the

rate she was going, she wouldn't live until 25," and telling

another woman that her "immune system was completely shot" and that

"within a couple of months [she] could be dead." Having scared the

clients, Curran offered expensive treatments to them, telling them,

"You can't put a price on health." Curran offered "green drink,"

which he claimed was a nutritional supplement he had invented,

containing "a synergistic blend of all natural compounds that

support and promote the body's overall ability to fight and prevent

diseases." Though Curran sold this item in buckets priced at $600,

$1,000, and $2,000, it was a commercially produced liquid that

usually sold for only a small portion of Curran's mark-up.

Another one of Curran's proposed "cures" was "Specially

Energized water," which he said had the "same Synergistic healing

properties as the water in Lourdes, France." The water was

actually distilled water Curran ran through a blender. He also

sold therapies named hydrotherapy massage, SpectraColor spa,

hyperbaric chamber, ionic cleaner, massage capsule, and personal

sauna.

Though Curran began his practice as early as 1998, the

government's evidence at trial emphasized the years 2003-4, during

which period Curran "treated" 340 clients. In each case, Curran

performed at least one live blood exam, which in turn led to the

-6-
diagnosis of one of the invented ailments listed supra. Each

client bought one or more of Curran's treatments for a cost in some

instances of more than $10,000. In those two years, Curran made

$1.4 million in income doing this kind of evaluation and

"treatment" of his clients. Urged by one of his former naturopathy

teachers not to pretend to be a medical doctor, Curran responded,

"Some people will think I'm a medical doctor, some people won't.

I don't care what they think as long as they give me money." He

continued, "I'm tired of being broke. I want to make as much money

as medical doctors."

As part of his ongoing fraud, Curran made interstate wire

transmissions, including a fax to a company which printed one of

Curran's misleading pamphlets; an email about the purchase of one

of his Ph.D. diplomas; a faxed sales agreement to buy a BioMeridian

machine; a faxed application for a line of credit in the name of a

parent of one of his clients; and related credit card and credit

line transactions involving client payments.

In his defense, Curran testified to believing in all of

the methods and products he used and denied any intent to mislead

clients about his credentials. He admitted to telling clients "you

can't put a price on your health" but also claimed that he

regularly told clients that he was a naturopath who had later

earned "honorary" and "academic only" M.D. degrees. At sentencing,

Curran's counsel submitted letters from fifty-six of Curran's

-7-
former clients saying they were happy with Curran's work and/or had

not been victims of fraud.

In his appellate brief, Curran states that "[he] does not

challenge his conviction but appeals based upon multiple errors

related to his sentence."

Discussion

I. Amount of Loss

Curran complains that the district court's calculation of

the amount of loss for use in determining his Guideline sentence

was excessive. The court's $1.4 million loss calculation resulted

in a sixteen-level increase in Curran's offense level. USSG §

2B1.1(b)(1)(I)(2005).1 Curran contends the loss calculation was

based on insufficient evidence, as only a relatively few clients

actually testified and the court did not distinguish between

services purchased by clients who were taken in by Curran's

fraudulent scheme and those, such as the fifty-six who wrote

letters expressing satisfaction, who were happy to receive Curran's

legitimate alternative therapies and may have sought him out solely

as a naturopath. We find little merit in these contentions.

The government bears the burden of proving a victim's

losses by a preponderance of the evidence. United States v.

Acosta, 303 F.3d 78, 82 (1st Cir. 2002). In calculating loss

1
This Guideline provision section provides a chart for amount
of loss exceeding $5,000 and the corresponding mandated point
increase in the offense level.

-8-
amounts under the Guidelines, a district court evaluates losses

stemming from the conduct of conviction and any relevant conduct.

United States v. Flores-Seda, 423 F.3d 17, 20-21 (1st Cir. 2005).

"Determination of actual loss need not be precise; '[t]he court

need only make a reasonable estimate of the range of loss, given

the available information.'" United States v. Brandon, 17 F.3d

409, 457 (1st Cir. 1994) (quoting USSG § 2F1.1 cmt. n.8 (1994))

(alteration in original). A court may base a loss estimate on

factors including "[t]he approximate number of victims multiplied

by the average loss to each victim" and on "[m]ore general factors,

such as the scope and duration of the offense and revenues

generated by similar operations." USSG § 2B1.1, cmt. n.3(C)(iii)

and (iv) (2005). "[T]he district court "may rely on the

[Presentence Report], affidavits, documentary exhibits, and

submissions of counsel." United States v. Ranney, 298 F.3d 74, 81

(1st Cir. 2002).

We review the district court's interpretation and

application of the sentencing guidelines de novo and its factual

findings for clear error. Id., 298 F.3d at 81. As Curran

acknowledges, a defendant "dissatisfied with the sentencing court's

quantification of the amount of loss in a particular case must go

a long way to demonstrate that the finding is clearly erroneous."

United States v. Rostoff, 53 F.3d 398, 407 (1st Cir. 1995).

-9-
 a. District Court's Ruling

The Presentence Report ("PSR") recommended the same loss

amount that the district court subsequently adopted. This was

based upon evidence received at the trial, including a summary

chart of Curran's office records and exhibits demonstrating the

prices paid by clients for Curran's services. Exhibit 303, the

summary chart based on records from Curran's office, was admitted

without objection at trial and indicated that between 2000-04,

Curran examined almost 500 clients. In almost every case, Curran

conducted a live blood exam which he found to reveal a frightening

condition like "parasites" or "red crystals." More than two-thirds

of the clients were found to have parasites in their blood, a

diagnosis the court found to be incredible given the unrebutted

expert testimony that parasites in the blood are an extremely rare

condition, as well, it may be presumed, as the evidence indicating

Curran's lack of medical training and qualifications to make such

diagnoses and much other evidence of fraud. The summary chart

demonstrated that most patients purchased at least one of the

following products: E-Water, Green Drink, or Silver Water. Three

other trial exhibits, based on the records seized from Curran's

office, showed exact dollar amounts spent by 340 clients in 2003-

04, a figure which totaled $1,386,429.77 and which the district

court rounded to $1.4 million for purposes of discussion at

-10-
sentencing. The total did not include the payments made by

patients treated prior to 2003.

As said, the district court followed the recommendation

of the PSR in concluding that the amount of loss from Curran's

scheme totaled about $1.4 million and, in any event, was "clearly

in excess of $1 million." That latter assessment resulted in a 16-

level increase in his offense level. USSG § 2B1.1(b)(1)(I) (2005).

Curran argues that the amount of loss to his victims was in fact no

more than $564,528.67. He arrives at this number by counting only

the amount of money listed in self-reported claims for restitution

filed by 108 of his victims. But the fact that not all the victims

sought restitution is not determinative for purposes of calculating

the amount of loss.2 The court was entitled to conclude from the

totality of the evidence, including the comprehensive exhibits

mentioned above, that the practices and patterns of conduct

described by certain witnesses were followed generally as to

Curran's clients, and that all were subjected to fraudulent

practices regardless of whether they actively sought restitution.

At sentencing, following a discussion regarding the PSR's

loss calculation, the district court made the following ruling:

2
Curran argues that the loss amounts were not subject to
adequate adversarial testing pursuant to Rita v. United States, 127
S. Ct. 2456, 2465 (2007), but the loss figures were based on trial
evidence, including testimony subject to cross-examination, and
Curran could have called relevant witnesses back at the sentencing
hearing or submitted new evidence but did not do so.

-11-
 First and foremost, the Defendant held himself out as
having a medical degree. He wore it on his jacket. He
had it up on the wall . . . .

And finally, and more precisely with respect to the loss
figure here, as it was presented at trial as part of the
proof, the Defendant subjected over 300 people to this
live blood analysis; and in all of them, as I understood
the evidence as it was presented in summary fashion,
every single one of those people was told that there was
some abnormality with their blood, which, as [government
counsel] says, Dr. Crausman says is a statistical
impossibility.

And so it is clearly part and parcel of the scam
perpetrated by the Defendant in bringing people into his
office and then telling them that they were very sick
people who needed his services.

We then have the loss figure of $1.4 million. As I say,
it is a rounded-up number from the actual number that
appears in the pre-sentence report; but it is clearly in
excess of $1 million, which is the threshold for the 16-
level adjustment pursuant to 2B1.1(b)(1).

Application Note 3(c) only requires the Court to make a
reasonable estimate. And here, as I say, the threshold
figure for the 16-level increase is one million.
Clearly, the evidence that was produced at trial was far
in excess of that number, and so I find that the
probation officer properly included the 16-level
adjustment for a loss amount in excess of $1 million.

b. Curran's Argument

Curran insists the loss amount is inflated as it includes

payments from clients who were not victims of the fraudulent scheme

"but instead enjoyed the benefits of the legitimate naturopathic

services Curran rendered." He argues that the government needed to

submit even more individualized evidence than it did for each

victim related to the live blood testing results in order to prove

that the victim's payments to Curran for the test and prescribed

-12-
remedies were actual losses to the victim caused by his fraud. We

are not persuaded. There was ample evidence from which to conclude

that Curran falsely held himself out to his clients to be a medical

doctor, and that the clients listed in the summary chart were

improperly given blood tests and received medically frivolous

remedies designed for Curran's financial benefit rather than his

clients' well-being.3 That a few clients later relayed their

satisfaction with this fraudulent treatment through defense counsel

is immaterial in light of the clear evidence of professional

impropriety and fraud, affecting all his clients, that permeated

Curran's practice.

Curran complains that the Guidelines "offer little

direction" in how to determine who were actual victims for purposes

of assessing the loss total. "Victim" is defined in the

application notes to § 2B1.1 in part as "any person who sustained

any part of the actual loss determined under subsection

(b)(1). . ." (Nov. 2005). Actual loss is defined as the

"reasonably foreseeable pecuniary harm that resulted from the

offense." USSG § 2B1.1, comment n.3(A)(i) (Nov. 2005). Pointing

to language in the Guidelines establishing a causation requirement

3
Curran argues that it is not proven that the blood testing
led directly to the purchase of additional treatments. But it was
more than reasonable for the district court to conclude otherwise,
based on the evidence of Curran's terrifying and improbable
diagnoses of strange blood problems, as well as much other evidence
of associated fraud.

-13-
in assessment of loss, USSG App. C, amend. 617, (Nov. 1, 2001),

Curran argues that a causal link was not shown between the fraud

and the victims payments. That amendment states that:

The amendment defines "actual loss" as the "reasonably
foreseeable pecuniary harm" that resulted from the
offense. The amendment incorporates this causation
standard that, at a minimum, requires factual causation
(often called "but for" causation) and provides a rule
for legal causation (i.e., guidance to the courts
regarding how to draw the line as to what losses should
be included and excluded from the loss determination).
Significantly, the application of this causation standard
in the great variety of factual contexts in which it is
expected to occur appropriately is entrusted to
sentencing judges.

Id.

We see no definitional problem. Given the proof of

Curran's misrepresentation as to his medical qualifications and of

his fraudulent practices, including the questionable tests and

treatments he provided, the court could properly find that the

payments made by the clients fell well within the Guidelines'

definition of actual loss, to wit, reasonably foreseeable pecuniary

harm that resulted from the offense. USSG § 2B1.1, cmt. n.3(A)(i).

The court found that Curran's actions and services were all part

and parcel of his "scam" designed to scare the clients into

spending money. It was reasonable to conclude that the patients'

payments to Curran for those services were actual losses resulting

from the offense and that they were victims. We see no discrepancy

between the court's loss findings and the loss and causation

standards in the Guidelines.

-14-
 Curran relies on two cases which were remanded for

resentencing after a district court included non-causal factors in

its assessment of the loss. See United States v. Olis, 429 F.3d

540, 547 (5th Cir. 2005); United States v. Rothwell, 387 F.3d 579,

583 (6th Cir. 2004). Both cases are factually distinguishable.

Neither involves anything close to the present entwined situation,

in which Curran's charges for the tests and medications were shown

to be inextricably linked to his misrepresentations, malpractice

and fear-mongering.

Curran argues the government needed to prove client by

client that the live blood test results were the but-for cause of

each of the clients' payments, but, as the court noted, the scheme

"involved a number of fraudulent actions and representations," not

just the live blood testing. The live blood testing, although a

common thread, was, the court said, part of the larger "scam

perpetrated by the Defendant in bringing people into his office and

then telling them they were very sick people who needed his

services." And there was evidence at trial that Curran, not being

a doctor, was not authorized by state law to perform or evaluate

such a test, as well as that it was rare for parasites to be found

in anyone's blood. Curran's test results were described by one

doctor as "gibberish." Curran contends the court erred in

accepting the government's argument that it was statistically

impossible for all the clients to have had something wrong with

-15-
their blood since the clients were self-selecting and more likely

to be ill because they were seeking therapy. But this contention

is sheer speculation as to the facts at hand, unsupported by any

medical or other evidence. On this record, we can see no need for

any more refined or individualized loss calculations than those

supplied to support the district court's "reasonable estimate of

the range of loss, given the available information." Brandon, 17

F.3d at 457 (citation omitted).

Curran insists that the loss amount should at least be

discounted by the amount spent by some clients for "legitimate"

naturopathic therapies. But Curran held himself out to all comers

as a licensed medical doctor, not simply a naturopath. Curran's

scheme, which included his advertising himself as a medical doctor

and telling clients they had all manner of rare blood diseases or

the like, could be found to be intended to defraud all comers.

There is little evidence to suggest a separate class of clients who

understood he was not an M.D. and came to him simply in his

capacity as a naturopath. Moreover, the comment in notes

accompanying USSG § 2B1.1 states that in cases

involving a scheme in which . . . services were
fraudulently rendered to the victim by persons falsely
posing as licensed professionals . . . loss shall include
the amount paid for the property, services or goods
transferred, rendered, or misrepresented, with no credit
provided for the value of those items or services.

Id. cmt. n.3(F)(v) (2005). The Sentencing Commission noted that

"the seriousness of these offenses and the culpability of these

-16-
offenders is best reflected by a loss determination that does not

credit the value of the unlicensed benefits provided." U.S.

Sentencing Guidelines Manual app. C, vol. II, amend. 617, at 183-84

(2003). Thus, even supposing such services as the "full body

assessment" provided some naturopathic benefit, or at least were

believed by some clients to have done so, no credit is available

under the Guidelines for them where Curran was falsely posing to be

a licensed medical doctor at the time.4 It is true there were

fifty-six former clients who submitted letters through defense

counsel expressing apparent satisfaction with their treatment by

Curran, but even, arguendo, were we to make the doubtful assumption

that these fifty-six should somehow be excluded from the loss

calculation, Curran concedes the loss amount would still exceed the

$1 million upon which his sentence rested.

II. Number of Victims

Curran argues that the district court erred in concluding

that the scheme involved more than 250 victims for purposes of the

separate six-level sentencing enhancement under USSG §

2B1.1(b)(2)(C) (2005), asserting that there was an insufficient

causal link between the victims identified and the loss.5 This

4
Furthermore, the full body assessment included the live blood
test for which Curran was not licensed and which played a role in
the fraud designed to scare clients into buying products and
"cures."
5
The provision reads in relevant part: If the offense--
. . . (C) involved 250 or more victims, increase by 6 levels"

-17-
claim is largely a mere repetition of the argument just discussed.

The relevant commentary in the Guidelines defines a "victim" as

"any person who sustained any part of the actual loss determined

under subsection (b)(1)." USSG § 2B1.1, cmt. n.1. As in the

calculation of loss, we find no error in the court's calculation of

the number of victims. The court's ruling was as follows:

For the same reasons, essentially, as the Government
argued with respect to the loss amount, the Government
introduced in this case evidence that there were in
excess of 250 people who were subjected to the live blood
analysis and told that there were abnormalities, clearly
the evidence in the case supports the adjustment of six
levels up.

Curran focuses here on the court's reference to the live blood

analysis, arguing again that it was improper to tie the purchase of

products to the results of the live blood analysis. But as said,

Curran's argument overlooks that Curran fraudulently presented

himself as a medical doctor to his clients in his nameplate, his

business cards, his attire. The blood analyses were inextricably

linked to the entire fraud. There was no error in the court's

ascertainment of the number of the victims.

III. Restitution

Curran argues, for the first time on appeal, that the

court's restitution order in the amount of $1,425,061.62 was in

error because of what he calls the absence of a causal link between

the criminal offense and the loss amount. He did not raise this

(emphasis in original). USSG § 2B1.1(b)(2)(C) (2005).

-18-
argument below and concedes that any review by our court should be

for plain error only. The government contends that Curran has

waived this argument altogether and that we should not consider it

at all. See United States v. Rodriguez, 311 F.3d 435, 437 (1st

Cir. 2002) ("A party waives a right when he intentionally

relinquishes or abandons it. This is to be distinguished from a

situation in which a party fails to make a timely assertion of a

right-what courts typically call 'forfeiture.'" (internal citation

omitted)). As discussed infra, we hold the claim was waived,

although the outcome would be the same were we to review for plain

error.

Section 3663A(a)(1) of the Mandatory Victim Restitution

Act ("MVRA"), 18 U.S.C. § 3663A (2000), requires a district court

to order a defendant to make restitution to the victim, defined in

section 3663A(a)(2) as a "person directly and proximately harmed as

a result of the commission of the offense for which restitution may

be ordered." After the August 25, 2006, sentencing hearing, the

district court held a November 16, 2006, restitution hearing. The

court noted that the separation of the two hearings had allowed the

government to prepare a complete list of victims to whom

restitution was due and also permitted Curran time to provide

information for the restitution calculation regarding clients to

whom he claimed he had made refunds. At the restitution hearing,

defense counsel conceded he had not supplied government counsel

-19-
with any names of refund recipients and would not press the point

at the hearing. Asked if he had any objection to the government's

proposed list of victims and amounts of restitution, defense

counsel stated:

I do not have any specific objections as to any amounts
or anything of that nature. I would press an objection
that my client and I had just spoken about in terms of
we had received a number of letters and statements from
former clients who had indicated that, even though they
were on this list of summary of victims, they did not
want to be considered victims for purposes of
restitution . . .

In my research of the statute and speaking to the Court,
it's my understanding that it doesn't matter whether
they want to be considered victims or not, the statute
is denominated a mandatory victim restitution statute
and that if they don't want the money when it comes in,
apparently the procedure is for them to either remit it
back to the Government to be put into the general fund
for victims or something of that nature.

So I just did not want to lay that objection on the
record that it seems nonsensical that someone that
doesn't want to receive money as a victim is forced to
receive money or forced to transfer it over to a general
fund for victims; but if that is, in fact, the case,
then I certainly have nothing--

(emphasis supplied).

In his reply brief on appeal, Curran argues that he never

waived "his right to contest the issue as to whether the people in

the restitution calculation were directly and proximately harmed as

a result of the offense," claiming that he did not concede that the

pool of victims was properly cast. The difficulty with this

argument is that, when asked at the outset by the court, "Do you

have any objection to the proposed list of victims and amounts of

-20-
restitution that the Government filed on Monday?" (emphasis

supplied), defense counsel plainly stated that he did not have "any

specific objections" to "any amounts or anything of that nature."

To be sure, he then went on to allude to pressing an objection

based upon letters from "former clients" who said they did not want

to be considered victims. But he did not withdraw his earlier

statement of non-objection and never thereafter lodged an actual

objection. Instead, referring to his legal research on the

subject, he said he understood that "it doesn't matter whether they

want to be considered victims or not" and "did not want to lay that

objection upon the record." The upshot appeared to be that he

accepted that the statute provides for mandatory restitution

regardless of the preference of the victims. See United States v.

Johnson, 378 F.3d 230, 244-45 (2d Cir. 2004) ("[A] district court

may--indeed, must--impose orders of restitution on defendants

convicted of crimes identified in the MVRA even if their victims

decline restitution."). Counsel concluded that "if that is, in

fact, the case, then I certainly have nothing." Given that Curran

was granted an explicit opportunity below to object to the proposed

list of victims, affirmatively stated he had no objections, and did

no more than express frustration over the existing state of the

law, we hold he waived any right to contest the victims' list on

appeal. To hold otherwise would be to allow counsel to withhold

-21-
matters from consideration by the district court only to use them

on appeal.

Curran, moreover, would fail on this point even if it

were now reviewed for plain error. As in the case of calculation

of loss, "absolute precision is not required in calculating

restitution under the MVRA." United States v. Mahone, 453 F.3d 68,

74 (1st Cir. 2006) (citation omitted). "[O]nly a modicum of

reliable evidence is required to establish a restitution award."

Id. (citation omitted). As noted supra in the discussion of the

amount of loss and number of victims, Curran concocted a scheme

predicated on holding himself out falsely as a doctor and

conducting bogus tests and therapies for which he charged his

clients large sums. The evidence is well-established as to the

identity of the clients and the amounts charged to each.

Curran quotes from United States v. Vaknin, 112 F.3d 579,

590 (1st Cir. 1997), for the proposition that the restitution

analysis requires an "individualized inquiry; what constitutes

sufficient causation can only be determined case by case, in a

fact-specific probe." The situation in Vaknin, however, was

factually distinguishable from the present. The evidence here

does, indeed, reflect a "fact-specific probe." The court in the

instant case based its analysis on very substantial record evidence

(far exceeding a mere "modicum"), which included summary charts of

the prices paid by hundreds of Curran's clients for the fraudulent

-22-
services received, as well as extensive evidence, and a jury

verdict, establishing the overall fraud. Defense counsel made no

effort to highlight any deficiencies in the court's calculations

and in fact did the opposite by stating that he did not "have any

specific objections as to any amounts or anything of that nature."

Even had any objection not been waived, the court's restitution

ruling came nowhere near meeting the plain error standard. See

United States v. Olano, 507 U.S. 725, 732 (1993) (showing of plain

error requires an obvious error that affects the defendant's

substantial rights and that "seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings") (citations

omitted) (alteration in original).

IV. Sixth Amendment Claim

Curran lastly makes what he concedes is a futile argument

that the district court violated his Sixth Amendment rights by

applying sentencing enhancements not found by the jury and based on

a preponderance of the evidence standard rather than beyond a

reasonable doubt. We have repeatedly rejected this argument and do

so again in this case. See, e.g., United States v. Pizzara-

Berrios, 448 F.3d 1, 6 (1st Cir. 2006).

Affirmed.

-23-