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
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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
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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
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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.
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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
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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
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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.
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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).
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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
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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.
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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
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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.
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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.
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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
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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
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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"
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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).
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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
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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
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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
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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
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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.
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