NEW JERSEY FEDERAL CRIMINAL DEFENSE LAW: IN SENTENCING GUIDELINE DECISION, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT REVIEWS UPWARD ADJUSTMENT FOR ABUSE OF A POSITION OF TRUST

New Jersey Criminal Lawyers Schwartz Posnock

Recently, in United States v. Ashokkumar, a federal criminal case involving a doctor who accepted illegal kickbacks, the Third Circuit Court of Appeals held that a physician was subject to a two-level adjustment for abuse of a position of trust pursuant to United States Sentencing Guideline §3B1.3. This decision is applicable to the federal criminal trial courts of New Jersey.

The federal appeals court held the following: First, in determining whether to apply the adjustment under the federal criminal sentencing guidelines, a court “must determine whether a defendant was placed in a position of trust,” and, if he was, it must then determine “whether he abused that position in a way that significantly facilitated his crime.” In determining whether a position of trust exists, the court must consider three factors: “(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-à-vis the object of the wrongful act; and (3) whether there has been reliance on the integrity of the person occupying the position.” These factors should be considered “in light of the guiding rationale of the section – to punish ‘insiders’ who abuse their positions rather than those who take advantage of an available opportunity.”

At sentencing, the defendant doctor objected to a two-level adjustment for abuse of a position of trust pursuant to USSG §3B1.3, and a four-level adjustment for aggravating role pursuant to USSG §3B1.1(a), resulting in a recommended Guidelines range of 70-87 months’ imprisonment . The statutory maximum capped the guidelines range at 60 months imprisonment, and the United States District Court, applying both adjustments, imposed a sentence of 46 months in federal prison, a $25,000 fine, and reimbursement of all government fees paid as a result of patients whose doctors received kickbacks.

On appeal, the defendant argued that it was error to apply the §3B1.3 adjustment because he neither occupied nor abused a position of trust. The Court, after reviewing the Comments to 3B1.3, restated prior case law describing the three factors set forth above that determine whether a position of trust exists. Using these criteria, the Court concluded the defendant physician held a position of trust, as in his position he certified compliance with anti-kickback rules, yet concealed the kickbacks. He held a position that both allowed him to commit wrongs and allowed him to make those wrongs harder to detect. He was not subject to any supervision over his actions with respect to the business and its relations with the government. His position in the organization was a significant factor in his ability to commit the crime. The Court held that he was, without question, an “insider” who “abused his position,” not merely an individual who took advantage of an available opportunity. Indeed, the defendant’s position contributed in a “significant way to facilitating the commission or concealment of the offense, because his level of authority and the lack of supervision over his actions enabled him to commit the offense and evade detection.

For individuals who are facing federal criminal prosecution or sentencing in the United States District Court for the District of New Jersey, or state criminal prosecution or sentencing in the criminal courts of New Jersey, or who are appealing their criminal matters before the United States Court of Appeals for the Third Circuit, the New Jersey Appellate Division, or the Supreme Court of New Jersey, it is critical to have an experienced federal and state New Jersey criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in all Federal Courts of New Jersey, as well as the State and Municipal criminal courts in New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment.

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