Accountability and transparency within our institutions and leadership.
posted by jewishwhistleblower @ 7:18 AM
As the most divisive annual meeting in the history of the RCA, begins in the Newark Airport Hilton in a mere, rather than focus on the forces of Rabbi Mordechai Tendler who plan to rally their forces and attack his "enemies". I thought I would focus on the corruption that the rabbanut will not address this weekend in its ranks. Some of these posts will involve older stories with some new information and insights. But really what has changed?Let's start with Rabbi Lewis Brenner of Brooklyn and his extended Rabbinical family. The family that gave the word dysfunction meaning years before Rabbis Mordechai and Aron Tendler's current troubles. http://www.theawarenesscenter.org/Tendler_Mordecai.htmlhttp://www.lukeford.net/profiles/profiles/aron_tendler.htmFor decades the extended Brenner family ran ambulance companies in NY and old-age homes. They were pillars of the community. Rabbi Brenner was a Vice President of the Rabbinical Alliance of America (I would note that the current director of the RAA Rabbi Gershon Tannenbaum is a career criminal, with a record going back to the 70s see latest stint in prison by searching http://www.bop.gov/iloc2/LocateInmate.jsp ), he wrote articles in the Jewish Observer in the 1970's.But there was another side of him. One that resulted in him moving from city to city and pulpit to pulpit.In October 1995, that side was finally revealed when he was arrested on child molestation charges. Charges he pled guilty to.http://www.theawarenesscenter.org/lewisbrenner.html1)Retroactive Effect Given Megan's Law Fed'l, State Rulings Diverge, Judge Notes New York Law Journal - March 14, 1997, Friday BY CERISSE ANDERSON http://www.usajewish.com/scripts/usaj/forum/forum.idc?ForumID=24&ArchiveID=121 A BROOKLYN rabbi who pleaded guilty to one felony count of sexual abuse must register as a sex offender under New York's version of Megan's Law even though the criminal act occurred before the law became effective and though he was sentenced to probation instead of jail time, a state judge has ruled. Ruling yesterday in People v. Lewis Brenner, filed in Supreme Court, Kings County, Criminal Term Part AP F1,Acting Justice Charles J. Heffernan noted, after an extensive review of 15 opinions in 13 cases across the country which have considered whether Megan's Laws should be applied to all offenders retroactively, that "there is a marked divergence of opinion between federal and state courts." An edited version of the decision will be published Monday. Justice Heffernan said he agreed with the majority of state judges who have considered the issue that, when applied to Mr. Brenner, New York's Sex Offender Registration Act (SORA) was not punishment, since Mr. Brenner already had felt the sting of community rejection upon his arrest. Thus, he said, the retroactive application of the notification provisions of the law was not unconstitutional as a violation of the ex post facto clause of the U.S. Constitution. Furthermore, the judge said, the Legislature intended the law to apply to offenders sentenced to probation as well as to those who serve prison time. But, he said, prosecutors had failed to produce evidence that would justify classifying the 65-year-old man as a Level 2 Risk which would require notification to law enforcement agencies and possible announcement to the community of his "approximate" address (based on his zip code) and criminal background. A Level 1 Risk, a "low" risk of repeat offense, requires notification of his address and background only to law enforcement agencies. The original Megan's Law requiring notification to law enforcement agencies, and in some cases the public, of a defendant's status as as previously-convicted sex offender was enacted in New Jersey after the molestation and murder of Megan Kanka by a released sex offender whose history was unknown in the neighborhood where he and the child lived. All the remaining states have since enacted child sex offender registration laws. Shunned in Community Last year, U.S. District Court Judge Denny Chin in Manhattan found the notification provisions of SORA amounted to punishment and thus were unconstitutional as an ex post facto law and permanently enjoined its retroactive enforcement in Doe v. Pataki, 940 F.Supp. 603 (appeal has been argued before the Second Circuit and is pending). Justice Heffernan, however, said he was unable to reach the same conclusion for Mr. Brenner. "While four of the six state courts which have considered the issue have rejected such [retroactivity-related] challenges . . ., decisions in four of the six federal cases on point have espoused a contrary view, either directly or by pointed suggestion. Appeals in two of those cases are now sub judice before the U.S. Court of Appeals for the Second and Third Circuits," the judge noted in his 111-page opinion. Justice Heffernan said he agreed with the analyses and holdings of the Supreme Courts of New Jersey and Washington State, the U.S. District Court for New Jersey and a state Supreme Court justice in Rochester, N.Y., all of whom rejected the contention that retroactive notification constituted punishment. After conducting a hearing last October, the judge concluded that Mr. Brenner had been subjected to shunning within his Orthodox Jewish community (he had to resign from the temple he founded and received a letter threatening him unless he stayed off the block where his congregation was located), but "it would appear that defendant has been able to retain considerable stability in his life with limited exceptions." Justice Heffernan noted that Mr. Brenner had been accepted by another religious congregation despite knowledge of thecharges in the case. "[Defendant] failed to demonstrate that the effects of any form of community notification, should it be authorized, would be appreciably beyond those which arose without such notification," he said. Thus there was no basis for a finding that the notification "would be an affirmative disability or restraint upon defendant." Mr. Brenner had been charged with 14 counts of sodomy, sexual abuse and endangering the welfare of a child arising from sexual contact with the same youth whom he allegedly met in the bathroom of the temple they both attended. The sexual contact was alleged to have been committed over a three-year period until October 1995, when the then 15-year-old told authorities. He agreed to plead guilty to one count of sodomy in the third degree, a Class E felony, in exchange for a sentence of five years' probation. Mr. Brenner was represented by Marvin E. Schechter. The case was prosecuted for Brooklyn Assistant District Attorney Nancy M. Slater. 2) But why no jail time:Stephanie Saul of Newsday took a crack at the question and revealed a shocker Rabbi Brenner's son-in-law Rabbi Ephraim Bryks was also an alleged child molester.Rabbi Bryks of course had "quietly" resigned from the Rabbinical Council of America choosing (unlike Rabbi Mordechai Tendler) not to face a Beis Din Hakavod investigation or hearing.see: http://www.theawarenesscenter.org/Bryks_Ephraim.htmlTripping Up The Prosecution By Stephanie Saul - Staff Writer Newsday - May 28, 2003 Last in a series. http://www.nynewsday.com/templates/misc/printstory.jsp?slug=nyc%2Dpros0529§ion=%2Fnews%2Flocal%2Fqueens Former New Yorker Avrohom Mondrowitz has built a quiet, comfortable life as a college professor in Jerusalem. The syllabus for his business administration course at Jerusalem College of Engineering is posted on the Web, along with his phone number. Mondrowitz is living so openly, it's hard to believe the psychologist and self-styled rabbi is wanted for allegedly sexually abusing four Brooklyn boys, ages 10 to 16. The charges against him include sodomy. "I don't want this hydra to lift its head again," said Mondrowitz, declining to discuss his 1985 indictment on 13 counts. Once the host of a radio program in Brooklyn, Mondrowitz will be arrested should he ever re-enter the United States, according to the office of Brooklyn District Attorney Charles J. Hynes. But according to U.S. Justice and State department documents, Hynes' office approved a decision in 1993 to drop efforts to extradite Mondrowitz, a U.S. citizen who has been sheltered by the Israeli government since he fled the United States in 1985. Michael Lesher, a New Jersey attorney who obtained the federal documents after years of research on the Mondrowitz case, said the decision to drop efforts to return Mondrowitz to the United States is an embarrassing one, considering the severity of the charges. A spokesman for Hynes, Jerry Schmetterer, was at a loss to explain the decision. "We don't know anything about the State Department closing its file," said Schmetterer, calling the federal records a "mystery." "We have nothing in our files to indicate we ever made that decision," said Schemetterer, emphasizing that the Mondrowitz file is still kept in a prosecutor's desk in the event Mondrowitz ever returns from Jerusalem. Escape to Israel is merely one of the factors that can hamper prosecution of alleged sex abuse in the Orthodox community. Police and prosecutors find that victims of alleged sexual abuse in those communities are discouraged from coming forward. Intense pressure is often brought to bear on complainants who bypass rabbinical courts -- the community's preferred method of settling disputes -- and instead go to secular authorities. Witnesses, who are often young, become fearful and wavering. And prosecutors face pressure from a community that votes as a cohesive block. One woman, whose son was called to testify about an alleged instance of abuse, said that extraordinary pressure was placed both on her family and on the family of the alleged victim. "I had rabbis coming by. They threatened we'll have curses in our family. It might sound silly to you, but it was very frightening," said the woman. She said that rabbis supplied her with a statement from a psychologist who had never examined her son, saying he was not fit to testify. In Brooklyn, with its large Hasidic community, police have been confounded by the outcomes of some cases they investigated involving the Hasidim. At a loss to explain the cases, some cops in the 66th Precinct, which includes Borough Park, have shrugged their shoulders and paraphrased a line from the Jack Nicholson film "Chinatown" -- "Forget it, Jake, it's Brooklyn." One of those who recalls making the remark was retired police Capt. William Plackenmeyer, who worked for many years in Brooklyn. "In Brooklyn, it almost seemed like there were two penal codes, one for the Hasidic community and one for everyone else," Plackenmeyer said. But Hynes' office says decisions on prosecutions are made without regard to political considerations or community pressure. "We prosecute sex crimes. We prosecute allegations of child abuse, sex abuse," said Schmetterer. "Trained investigators conduct these investigations and come to a conclusion. They make the decision." The arrest of a popular rabbi in the Bobox Hasidic sect in January 2000 provides another example of the pressure that can be placed on those who complain to outside officials. In that case, a 9-year-old boy accused the Brooklyn rabbi, his tutor, of physically and sexually abusing him. In the end, Hynes' office threw out all charges against Rabbi Solomon Hafner. Schmetterer said they were found to be baseless. But before the case was resolved, the police assigned 24-hour protection to the complainant's family, according to a law enforcement source. The family had been threatened by members of the Bobov community, the source said. "They excoriate the victim, they run them out of the community, they make sure the victim will never marry," said sociologist Amy Neustein, who, with Lesher, researched the Hafner case and frequently writes about domestic abuse in the Orthodox community and provided documents for this article. The boy's family later moved from Brooklyn to the quieter Bobov community in Monsey. The family would not talk to Newsday, but a friend said the move was an effort to escape community pressure. While Hynes' office was examining the boy's allegations, the Bobov community convened a rabbinical court, a bet din, to conduct its own investigation. The child's uncle later complained that rabbis on the bet din had asked the family to sign a document saying the boy was crazy so that they could get the criminal case thrown out. Several members of the bet din either did not return calls from Newsday or declined to discuss the religious court's proceedings. Meantime, according to the law enforcement source, Bobov rabbis appeared in Hynes office' to plead in Hafner's defense. Hynes' spokesman Schmetterer would not confirm or deny that such meetings took place, but he said it is not unusual for Hynes' office to meet with community leaders on cases. After the bet din decision, the five-member panel posted notices throughout Borough Park clearing Hafner. "Rabbi Hafner's comportment with [the child] has been in complete accordance with both Torah law and the law of the land, and a parent should not hesitate to engage Rabbi Hafner as a tutor for his/her child." With intense pressure from the community common in such cases, families also come under indirect pressure not to go public with their cases. The social stigma attached to being the victim of sexual abuse in the general public is magnified within the Hasidic community, sources said, so much so that Hasidic victims can find it difficult to marry within the community. And, as with sex-abuse allegations generally, parents fear causing further psychological damage to their children by placing them on the stand. In 1995, for instance, Hynes' office charged Rabbi Lewis Brenner with repeatedly sexually abusing a boy starting in 1992 and ending in 1995, when the boy, then 15, told police. Among other places, the alleged encounters occurred in the bathroom of the rabbi's Brooklyn temple. In a statement to the court, the boys' devastated parents said he could not even attend school, he was so troubled by "a raging cyclone of hate." "Our son is with us physically today, but his self-respect, dignity and sense of worth were stolen from him at the tender age of 12," the boys' parents said. "Do you realize that you destroyed a world and our family, Mr. Brenner? You have stolen from our son the very essence of his life, his hopes, dreams and aspirations for the future." The charges against Brenner initially included 14 counts, including sodomy, sexual abuse, and endangering the welfare of a minor. But a plea agreement whittled the charges down to one felony, stunning a Brooklyn judge. "Given the nature, gravity and frequency of the sexual contact alleged in the felony complaint, this court was surprised by the People's plea offer and requested of the prosecutor a statement why it was forthcoming," said acting Supreme Court Justice Charles J. Heffernan in a court ruling. The district attorney's office told the judge that the boy's family agreed to the plea bargain ... Recently, an official of the district attorney's office said the family did not want to go through with a trial. The plea arrangement left Brenner a free man -- he got 5 years probation. Brenner is the father-in-law of Ephraim Bryks, a Queens rabbi who was the subject of a story in Newsday on Tuesday. Two teenagers told Canadian police years ago that Bryks abused them when they were youngsters. Bryks has never been charged with a crime and has denied the allegations. After Brenner's plea deal, he asked the court to exempt him from the sexual abuse registry on grounds that his behavior occurred before the law was passed. Heffernan refused. 3) But was there more to the plea deal? Thank to my loyal readers/researchers, JWB will now present some interesting facts.Note: keep track of the ambulance companies.Also interesting unrelated note: Steven Zakheim another convicted sex-offender running an ambulance company (see: http://www.lidbrooklyn.org/bp040504.htm as it is off-topic).Sunday Oct 6, 1995Medicare fraud charges thrown at commercial ambulancesIn a follow-up to an earlier report, channel 2 news (wcbs-tv)reported on a Health Care Finance Agency (HCFA - the US gov't agencythat runs Medicare) audit that claims massive overcharges to Medicare by commercial ambulance companies in the NYC area.Annchor Cindy Hsu: ... lights flashing and sirens wailing, ambulances are making emergency runs. or are they? Sometimes ambulances are used for non-emergency trips to hospitals, doctors, and clinics. And that's ok under certain circumstances. But as channel 2's Mike Taibbi tells us in a special follow-up report, Medicare is now questioning whether ambulances are providing legitimate medical care or very expensive rides.(video clip of Midwood ambulance service and AmericanAmbulance units)Mike Taibbi: Last February, channel 2 reported that the American Ambulance Company of Brooklyn was billing Medicare more than $500 apiece to transport kidney dialysis patients to and from the Richmond Kidney center in Staten Island, even though it was not medically necessary for those patients to be transported by ambulance.One patient's daughter confirmed that her mother was simply gettingthe most expensive cab ride in town, three times a week.Lorraine Melina, daughter: She didn't need oxygen, she didn't need any special care to get into the van, all she needed was a ride.Mike Taibbi: The federal Medicare program, which pays the billsfor those runs with your tax dollars, had already begun an internal review of the problem.(cut to...)Alberta Leona, Medicare Assoc. Regi.Administrator:... and then channel two did something that's (inaudible) other ambulancecompanies...Mike Taibbi Our story accelerated the review. The result: anaudit of eighteen NY based ambulance companies which tentatively concludeshat over a three year period, there have been overpayments to those companies that to date totals some one hundred nine million dollars, a hundred nine million worth of trips that Medicare says lacked medical necessity to substantiate the need for the reported ambulance service.(cut to)Steve Zakheim, President, Metropolitan Ambulance:They are saying these patients are denied because the patients walked. -Nowhere- (on the acr) does it say the patient walked.Mike taibbi: Steven Zakheim runs the Metropolitan AmbulanceCompany, which was hit by Medicare with the biggest tentative overpayment claim, more than twenty-two million bucks. Zakheim says he knows the industry is filled with slimy operators, his words, but that he has the records to prove that Metropolitan is not one of them.Steve Zakheim: I know that we are going to justify every single transport, and our number is going to be reduced to zero, not one million, not to ten thousand, I believe our number is going to be reduced to zero because I checked it and my staff checked it...Mike Taibbi: But former Metropolitan drivers whom Zakheim says he fired tell us they routinely, and under supervisor's orders, transported patients who did not need ambulances. They said that often two or three patients at a time were transported by ambulance with a separate form filled out for each patient as long as each patient had a Medicare card.unidentified female tech: In the business a lot of people call it the gold card. If you've got the gold card, you cando anything, you can go anywhere.Gabe Harris, former Met tech: If you have the coverage to ride an ambulette, you'll be given an ambulette. Not because it's necessary (but) because I can bill for it.Gregory Dyer, former Met tech: I felt like a cab, a cab driver.Mike Taibbi: The drivers said everyone knew the rules, thatMedicare will pay for non-emergency ambulance transport only under certain conditions, for example, if the patient has a major fracture, has a body cast, is bed confined, immobile, disoriented, in extreme pain, or must be moved by stretcher.What they describe as routine throughout the industry we saw later on on our own. For example, this Medicare patient, who had been transported from a nursing home in another company's ambulance, walking around Brooklyn Hospital for the better part of an hour.Zakheim says the drivers are lying and trying to destroy his companySteve Zakheim: And once again, once we find one of these individuals who do these things we immediately dismiss themfrom our employ.Mike Taibbi: It's hard to square the numbers we're talking aboutwhen you look at some of these operations. This is the American Ambulance company in Sunset Park, Brooklyn. The tentative overcharges over a four year period involving thousands and thousands of trips deemed to be medically unnecessary: over fourteen million bucks.Owner Ed Weiss only spoke to us off camera, but he said: look, we're a transport company, one that's going out of business by the way, and if the doctor says the patient needs an ambulance we're not going to say no.End of statement, or no statement we were told at one company afteranother.Larry of Dell Ambulance: We really have to refer you to the Ambulance Association for any information.Mike Taibbi: No one would answer our questions at Dell or Metro-One, two companies operating out of the same Brooklyn garage that have been hit with a combined fifteen million dollars in tentative overpayments.But if our questions were unwelcome wherever we went, and they surely were.., (cut to unidentified ambulance employee saying:) get off the premises or I'll call the cops on you" , they're going to have to be answered to the auditors at Medicare and apparently some of the ambulance companies know this. Recent billings for ambulance runs have decreased nearly thirty percent over a comparable periodlast year.Alberta Leona: So they have gotten the message. Ithink it's been quite clear that there's a focus on this type of billing.Mike Taibbi: If it is clear, the private ambulance companiesaren't;t telling the taxpayers who foot the bill. they've only told us they will fight Medicare, even consider suing Medicare, to keep the millions they say they've been legitimately paid.Medicare admits that health care providers, including doctors, sometimes request ambulances for expediency or the comfort for the patient, but Medicare says that does not relieve the ambulance companies of the responsibility for only submitting claims for ambulance trips that are medically necessary. Medicare hopes to make a final determination of the amount of the overpayments by the end of the year.anchor Cindy Hsu: Now all of the ambulance companies we've contacted deny Medicare's preliminary findings and some say the audit will put some companies out of business, threatening the lives of patients.4) Cases that show the Brenner family connection to the Ambulance compamies being investigated. But who is their business partner Hugh Nastasi? The answer appears in 5.a.SUPREME COURT CIVIL SUITS FOR KINGS COUNTY, NEW YORKCASE-NAME: FARINA,ANTHONYv.BRENNER,LEWIS & DORIS YOCHOVED BRYKS,YAAKOV BRENNER, AVRAHOM BRENNER,RACHEL SHENKER, SHULAMIS ROCKOVE, HADASSAH FLAM, ARIEL BRENNER & DAVID BRENNERSTATUS: DISPOSED ON 08/06/1996; CASE DISPOSEDACTION: OTHERREQUEST FOR JUDICIAL INTERVENTION: 03/03/1992INDEX-NUMBER: 0064971992JURY REQUESTED BY: NON-JURYJUDGE: HERBERT KRAMERPLAINTIFF ATTORNEY:LAWRENCE&WALSH215 HILTONAVEHEMPSTEAD NY 01150516-538-2400DEFENDANT ATTORNEY:KOENIGSBERG & GENOVA130 WILLIAM STREET 12TH FLOORNEW YORK, NY 10038(212) 732-5100b.FARINA, ANTHONY J. v. NASTASI, HUGH ETAL, DISPOSED ON 02/14/1989; VERDICT FOR PLAINTIFF, CONTRACT, 06/30/1987, 0071761987, NYQUSP, QUEENS COUNTYFARINA, ANTHONY J. v. ...... CORP., SAUL SHENKER & LEWIS BRENNERc.FARINA, ANTHONY J. v. NASTASI, HUGH ETALSUPREME COURT CIVIL SUITS FOR QUEENS COUNTY, NEW YORKCASE-NAME: FARINA, ANTHONY J.v.NASTASI,HUGH ETAL AFTER-CARE AMBULANCE SERVICE INC.,DELL AMBULANCE & OXYGEN SERVICE INIC., HOLMES AMBULANCE SERVICE CORP., SAUL SHENKER & LEWIS BRENNERSTATUS: DISPOSED ON 02/14/1989; VERDICT FOR PLAINTIFFACTION: CONTRACTREQUEST FOR JUDICIAL INTERVENTION: 06/30/1987NOTE OF ISSUE FILED: 10/19/1988INDEX-NUMBER: 0071761987JURY REQUESTED BY: PLAINTIFFJUDGE: ARTHUR W. LONSCHEINPLAINTIFF ATTORNEY: LAWRENCE & WALSH P.C.215 HILTON AVENUEHEMPSTEAD, N.Y. 11550DEFENDANT ATTORNEY: M. JOSHUA ABER ESQ.10 COLUMBUS CIRCLE SUITE 2220NEW YORK, N.Y. 10019d.155 Misc. 2d 96, *; 587 N.Y.S.2d 126, **; 1992 N.Y. Misc. LEXIS 372, *** Anthony Farina, Plaintiff, v. Lewis Brenner et al., Defendants. Index No. 5497/92 SUPREME COURT OF NEW YORK, KINGS COUNTY 155 Misc. 2d 96; 587 N.Y.S.2d 126; 1992 N.Y. Misc. LEXIS 372 July 28, 1992, Decided NOTICE: [***1] EDITED FOR PUBLICATION CORE TERMS: usual place of abode, sidewalk, front, dwelling place, driveway, outer, service of process, personal jurisdiction, process server, property line, special use, summons, handed HEADNOTES: Process - Service of Process - Personal Service at "Usual Place of Abode" Plaintiff demonstrated that defendant wife was personally served pursuant to CPLR 308 (2) at her "dwelling place or usual place of abode" so as to obtain personal jurisdiction over her, where the process server handed two copies of the summons and complaint to the defendant husband while he was standing on the sidewalk, within the property line, at the end of the driveway that extends across the front of their residence. The outer bounds of the actual dwelling place, where defendant was standing, fall within the definition of "dwelling place or usual place of abode" (CPLR 308 ). Moreover, the "special use" of this portion of the sidewalk as a driveway further supports the fact that service was at the usual place of abode. COUNSEL: Koenigsberg, Norman & Genova, New York City, for defendants. Lawrence & Walsh, P. C., Hempstead, for plaintiff. JUDGES: Herbert Kramer, J. OPINIONBY: KRAMER OPINION: [*96] [**126] Defendant Doris Brenner moves to dismiss the action for lack of personal jurisdiction pursuant to CPLR 3211 (8) claiming that service upon her husband, Lewis Brenner, did not effectuate proper service upon her. [*97] A traverse hearing having been held, the court makes the following findings of fact. On January 21, 1992, David R. Jerviss, a licensed process server, handed two copies of the summons and complaint to one of the defendants, Lewis Brenner, in front of the premises located at 536 East 8th Street, Brooklyn, New York. Personal service upon Lewis Brenner is conceded. Lewis Brenner testified that at the time of service he was standing on the sidewalk in front of his residence within the property line. He also testified that Doris Brenner resides at 536 East 8th Street, Brooklyn, New York, and that she is the owner of said premises. DISCUSSION The issue raised is whether service on a sidewalk in front of defendants' residence falls [***2] within the definition of "dwelling place or usual place of abode" (CPLR 308 ). The defendant husband was served while standing on the sidewalk in front of his residence, at the end of the driveway that extends across the front of the premises. The court finds that the outer bounds of the actual dwelling place are deemed to extend to this area. Courts have upheld service made on a roadway leading to the house, while in the vicinity of the house or "at the house" and not in the house itself ( Lino v Hole, 159 Wash 16, 291 P 1079 ; Rousseau v Gayarre, 24 La Ann 355 ). The court also finds that the "special use" to which part of this sidewalk, upon which defendant husband was served, was converted to a driveway, lends further support to service being at the "usual place of abode". The First Department more recently expanded the concept to extend the outer bounds of a defendant's actual dwelling place to a security booth located outside the private residential community in which defendant lived ( Costine v St. Vincent's Hosp. & Med. Ctr., 173 AD2d 422). The court finds that sufficient authority exists to extend the definition of "usual place [***3] of abode" to include the sidewalk in front of defendant's residence and service of process upon defendant husband at that location satisfied the requirements of section 308 (2) and personal jurisdiction over the defendant Doris Brenner was obtained thereby. e.173 A.D.2d 520, *; 570 N.Y.S.2d 121, **; 1991 N.Y. App. Div. LEXIS 7698, *** Anthony J. Farina, respondent, v. Hugh Nastasi, et al., defendants, Lewis Brenner, appellant No. 2252E Supreme Court of New York, Appellate Division, Second Department 173 A.D.2d 520; 570 N.Y.S.2d 121; 1991 N.Y. App. Div. LEXIS 7698 April 11, 1991, Argued May 13, 1991 PRIOR HISTORY: [***1] In an action to recover a brokerage commission, the defendant Lewis Brenner appeals from a judgment of the Supreme Court, Queens County (Lonschein, J.), entered July 19, 1989, which, upon a jury verdict, is in favor of the plaintiff and against him in the principal sum of $ 59,780. DISPOSITION: ORDERED that the judgment is affirmed, with costs. COUNSEL: Koenigsberg, Norman & Genova, New York, New York (Milton Norman of counsel), for appellant. Lawrence and Walsh, P.C., Hempstead, New York (Edward V. Walsh III and Stephen Albright of counsel), for respondent. JUDGES: Sybil Hart Kooper, J.P., Thomas R. Sullivan, Stanley Harwood, Albert M. Rosenblatt, JJ., concur. OPINION: [*520] [**121] DECISION & ORDER The appellant contends, inter alia, that the jury verdict is both unsupported by legally sufficient evidence and against the weight of the credible evidence. We disagree. The appellant does not contest that plaintiff broker earned a commission but claims that it was not he, but rather the purchaser who agreed to pay for the successful negotiation of the sale of the appellant's business. Although it constitutes evidence that a brokerage agreement was made and performed (see, [***2] Cohon & Co. v Russell, 23 NY2d 569; see also, Crabtree v Elizabeth Arden Sales Corp., 305 NY 48), the "hold Harmless" clause in the contract of the sale whereby the purchaser agreed to indemnify the appellant for payment of the commission is not dispositive of the issue of who is obligated to pay the commission. The testimony at trial establishes that, as between the plaintiff and the appellant, the latter owed a duty to the former to pay the commission. Since it cannot be said that no valid line of reasoning could lead to the conclusion that the appellant agreed to pay the plaintiff's commission (see, Cohen v Hallmark Cards, 45 NY2d 493, 499; cf., Cohon & Co. v Russell, supra), and since a "fair interpretation of the evidence" ( Nicastro v Park, 113 AD2d 129, 136), supports the verdict in the plaintiff's favor, the verdict was both supported by legally sufficient evidence and was not against the weight of the evidence. The appellant's contention that the Supreme Court should have granted his oral application, made after the plaintiff rested, to amend his answer so as to include the Statute of Frauds as an affirmative defense, is without merit (cf., Cohon [***3] & Co. v Russell, supra; see, CPLR 3018[b]; cf., CPLR 3211[a], ; see also, Simis v Wissel, 10 App Div 323). Further, the court did not err in refusing to admit into evidence two letters which were written by the plaintiff's attorney to the appellant's attorney prior to the commencement of this suit. A plaintiff's prelitigation speculations as to whom he might sue [*521] have no relevance to and are not inconsistent with the liability of the defendant who is actually sued (see, Goodman v Vizsla Clubs of Am., 73 AD2d 637, 638). The appellant's remaining contentions are either unpreserved for appellate review (see, CPLR 5501) or do not warrant reversal.5) So in October 1995 within days of his arrest on child molestation chatges, a government audit emerged that also linked the Brenner families' ambulance companies to massive government fraud. But here's the kicker: Rabbi Lewis Brenner wasn't the owner. Who was the real owner? ... Hugh Nastasi.a.Daily News (NY)February 23, 20013 ADMIT HUSTLING MEDICAID TOOK FEDS FOR 50M RIDEBy MIKE CLAFFEY DAILY NEWS STAFF WRITERThree brothers pleaded guilty yesterday to using four Brooklyn ambulance companies to scam the federal government out of more than $50 million in Medicaid payments.Hugh, Anthony and Robert Nastasi agreed to cough up $8 million and admitted that they conspired to conceal the fact that Hugh owned the companies, even though he had been banned from the industry for a Medicaid fraud convictionin 1989.Hugh Nastasi, 50, of Brick, N.J., also confessed in Brooklyn Federal Court to paying kickbacks and bribes to hospital workers to recommend his companies to patients. As part of the plea deal worked out with Assistant U.S. Attorney Tim Macht, the brothers forfeited $8 million and several unspecified real estateholdings.Hugh faces up to eight years behind bars at his sentencing May 31 by Federal Judge I. Leo Glasser. Anthony, 36, of Brooklyn and Robert, 40, of Staten Island both face up to five years.Hugh Nastasi was banned from Medicare and Medicaid programs for 25 years as a result of his 1989 conviction for submitting false claims, prosecutors said.The scam centered on four ambulance companies operated by the brothers out of an office at 350 37th St. in Brooklyn: Metro 1 Ambulance Service Corp., Dell Ambulance, Dell Ambulette and Rio Ambulance.Prosecutors charged that the brothers received more than $50 million in payments that they weren't entitled to from the federal government from1992 through 2000.At the time of the brothers' arrests last April, prosecutors had charged that the companies routinely falsified paperwork to justify billing for ambulance service for people who did not need it.Federal investigators videotaped patients walking to ambulances. When the company later billed Medicare, it described the patients as "supine/unableto move" or "moved to ambulance on backboard or stretcher."The brothers did not plead guilty to those charges.As he left the courtroom, the dapperly dressed Hugh said, "I got nothing to say."His attorney, Walter Lesnevich, said that the plea was entered without any admission as to "how much money was allegedly lost by the government."Lesnevich contended that the main crime his client committed was getting involved in the business after he had been banned."We have many people prepared to come forward to say that they provided wonderful service," Lesnevich said.The plea was entered without any admission as to "how much money was allegedly lost by the government."Walter Lesnevichb.Daily News (NY)April 26, 2000MEDICARE CHEAT HELD IN NEW CONBy HELEN PETERSON DAILY NEWS STAFF WRITERAn ex-con who was banned from doing business with Medicare secretly raked in $40 million from the health insurance agency as the secret owner of aBrooklyn ambulance company, federal prosecutors say.Hugh Nastasi had been convicted of bilking Medicare in 1989, sentenced to a year behind bars, ordered to repay more than $3 million and barred fromparticipating in Medicare or Medicaid programs for 25 years.He was held without bail yesterday on the latest charges, pending a hearing next week in Brooklyn Federal Court. Federal prosecutors charged that Nastasi, 49, of Brick, N.J., is the secret owner of Metro 1 Ambulance Service and several other ambulances based at 350 37th St. in Sunset Park.Assistant U.S. Attorney Timothy Macht filed court papers charging that after Nastasi was released from prison in 1990, he was right back in business - running the ambulances on a day-to-day basis as the secret owner while others were listed on paper.Nastasi's lawyer, Walter Lesnevich, said, "He's barred from being in the business. He's not in the business. He's a consultant, but he's not in thebusiness."Five employees who have worked for Nastasi's various companies over the years are cooperating with federal agents, according to an affidavit by Jo-Ann McGauley, a special agent with the Office of the Inspector General of the U.S. Department of Health and Human Services.The feds also charge Nastasi ordered employees to falsify records by claiming to have transported patients on stretchers when the patientsactually walked in and out of ambulances.He allegedly ordered the phony paperwork to justify transporting people by ambulance even though they didn't need the service.Medicare reimbursement for ambulance transportation is $225 for each one-way trip, plus $5.04 per mile, up to 75 miles."We live and die by Medicare and Medicaid, and if you can't do the right thing, then there's the door," Nastasi allegedly said at one staff meeting, indicating employees should falsify paperwork.A former employee who worked at the company through 1997 said Nastasi admitted he was the owner of Metro 1, authorities said.In addition to Metro 1, the feds said Nastasi secretly owned and operated Dell Ambulance & Oxygen Service, Dell Ambulette Services and Rio Ambulance Service Corp.He faces up to 15 years behind bars if convicted.c.Daily News (NY)April 26, 2000EX-CON IS HELD IN NEW MEDICARE RIPOFFBy HELEN PETERSON DAILY NEWS STAFF WRITERAn ex-con who was banned from doing business with Medicare secretly raked in $40 million from the health insurance agency as the secret owner of a Brooklyn ambulance company, federal prosecutors say.Hugh Nastasi had been convicted of bilking Medicare in 1989, sentenced to a year behind bars, ordered to repay more than $3 million and barred from participating in Medicare or Medicaid programs for 25 years.He was held without bail yesterday on the latest charges, pending a hearing next week in Brooklyn Federal Court. Federal prosecutors charged that Nastasi, 49, of Brick, N.J., is the secret owner of Metro 1 Ambulance Service and several other ambulances based at350 37th St. in Sunset Park.Assistant U.S. Attorney Timothy Macht filed court papers charging that after Nastasi was released from prison in 1990, he was right back in business - running the ambulances on a day-to-day basis as the secret owner while others were listed on paper.Nastasi's lawyer, Walter Lesnevich, said, "He's barred from being in the business. He's not in the business. He's a consultant, but he's not in thebusiness."Five employees who have worked for Nastasi's various companies over the years are cooperating with federal agents, according to an affidavit by Jo-Ann McGauley, a special agent with the Office of the Inspector General of the U.S. Department of Health and Human Services.The feds also charge Nastasi ordered employees to falsify records by claiming to have transported patients on stretchers when the patientsactually walked in and out of ambulances.He allegedly ordered the phony paperwork to justify transporting people by ambulance even though they didn't need the service.Medicare reimbursement for ambulance transportation is $225 for each one-way trip, plus $5.04 per mile, up to 75 miles."We live and die by Medicare and Medicaid, and if you can't do the right thing, then there's the door," Nastasi allegedly said at one staff meeting, indicating employees should falsify paperwork.A former employee who worked at the company through 1997 said Nastasi admitted he was the owner of Metro 1, authorities said.In addition to Metro 1, the feds said Nastasi secretly owned and operated Dell Ambulance & Oxygen Service, Dell Ambulette Services and Rio Ambulance Service Corp.He faces up to 15 years behind bars if convicted.d.The New York PostApril 26, 2000MAN CHARGED IN $40M MEDICARE FRAUDMaggie HabermanA convicted felon who acted as the shadow boss behind several Brooklyn ambulance companies, was charged yesterday with bilking Medicare out of $40 million - even though he'd been banned from the federal insurance program.Hugh Nastasi, 49, was convicted in Manhattan federal court in 1989 for submitting false Medicare claims in connection with an ambulance company heowned, officials said. He was barred from working for any company that files papers to collect from Medicare or state health care programs like Medicaid.But, using a front-man who pretended to be the owner, Nastasi secretly started running another ambulance company called "Metro-1," a criminalcomplaint filed in Brooklyn federal court charges.His lawyer, Walter Lesnevich, said Nastasi is an ambulance consultant, not a company owner.e.The New York TimesApril 26, 2000 U.S. Charges Man With Medicare FraudAP A New Jersey man was charged yesterday with bilking the Medicare system of $40 million by submitting false claims through ambulance companies he ransecretly.The man, Hugh Nastasi, who was arrested Monday night at his home in Brick, N.J., was convicted in 1989 in a fraud case and barred from taking part in Medicare or Medicaid for 25 years. But he secretly owned and ran at leastfour ambulance companies after leaving prison in 1990, said Loretta Lynch, a United States Attorney in Brooklyn. Prosecutors said Medicare had paid the businesses about $40 million since 1992. Mr. Nastasi's lawyer, Walter Lesnevich, said his client had served only as a consultant and had not violated the prohibition on his involvement in Medicare.f.Daily News (NY)April 26, 2000EX-CON IS HELD IN NEW MEDICARE RIPOFFBy HELEN PETERSON DAILY NEWS STAFF WRITERAn ex-con who was banned from doing business with Medicare secretly raked in $40 million from the health insurance agency as the secret owner of aBrooklyn ambulance company, federal prosecutors say.Hugh Nastasi had been convicted of bilking Medicare in 1989, sentenced to a year behind bars, ordered to repay more than $3 million and barred fromparticipating in Medicare or Medicaid programs for 25 years.He was held without bail yesterday on the latest charges, pending a hearing next week in Brooklyn Federal Court. Federal prosecutors charged that Nastasi, 49, of Brick, N.J., is the secret owner of Metro 1 Ambulance Service and several other ambulances based at 350 37th St. in Sunset Park.Assistant U.S. Attorney Timothy Macht filed court papers charging that after Nastasi was released from prison in 1990, he was right back in business - running the ambulances on a day-to-day basis as the secret owner while others were listed on paper.Nastasi's lawyer, Walter Lesnevich, said, "He's barred from being in the business. He's not in the business. He's a consultant, but he's not in thebusiness."Five employees who have worked for Nastasi's various companies over the years are cooperating with federal agents, according to an affidavit by Jo-Ann McGauley, a special agent with the Office of the Inspector General of the U.S. Department of Health and Human Services.The feds also charge Nastasi ordered employees to falsify records by claiming to have transported patients on stretchers when the patientsactually walked in and out of ambulances.He allegedly ordered the phony paperwork to justify transporting people by ambulance even though they didn't need the service.Medicare reimbursement for ambulance transportation is $225 for each one-way trip, plus $5.04 per mile, up to 75 miles."We live and die by Medicare and Medicaid, and if you can't do the right thing, then there's the door," Nastasi allegedly said at one staff meeting, indicating employees should falsify paperwork.A former employee who worked at the company through 1997 said Nastasi admitted he was the owner of Metro 1, authorities said.In addition to Metro 1, the feds said Nastasi secretly owned and operated Dell Ambulance & Oxygen Service, Dell Ambulette Services and Rio Ambulance Service Corp.He faces up to 15 years behind bars if convicted. 6) UNITED STATES v. HUGH NASTASINew York Law JournalMay 16, 2002DECISION OF INTERESTVolume 227UNITED STATES v. HUGH NASTASIJudge GlasserThe defendants in this case - Hugh Nastasi, Anthony Nastasi, Robert Nastasi, and Jose Davila, along with a number of companies (the "Nastasi Companies") purportedly owned by them - have pleaded guilty to conspiringto defraud the United States Department of Health and Human Services ("HHS") by concealing Hugh Nastasi's true ownership of the Nastasi Companies, in violation of 18 U.S.C. §371. [n1] The question currently before the Court is how to calculate the amount of "loss" resulting fromthe defendants' conduct in this case, which directly affects thedefendants' sentencing guideline ranges under Section 2F1.1 of the United States Sentencing Guidelines. [n2]The defendants argue that "loss" should be calculated in accordance with application note 8(b) of Section 2F1.1 of the Guidelines. Application note8(b), entitled "Fraudulent Loan Application and Contract Procurement Cases," states, in pertinent part:In fraudulent loan application cases and contract procurement cases, the loss is the actual loss to the victim (or if the loss has not yet come about, the expected loss). For example, if a defendant fraudulently obtainsa loan by misrepresenting the value of his assets, the loss is the amount of the loan not repaid at the time the offense is discovered, reduced by the amount the lending institution has recovered (or can expect to recover) from any assets pledged to secure the loan. However, where the intended loss is greater than the actual loss, the intended loss is to be used. The government, on the other hand, argues that "loss" should be calculated pursuant to application note 8(d) of Section 2F1.1 of the Guidelines. Thatapplication note, entitled "Diversion of Government Program Benefits," simply states that "[i]n a case involving diversion of government program benefits, loss is the value of the benefits diverted from intended recipients or uses."For the reasons set forth below, the Court will apply application note 8(d) of Section 2F1.1 with respect to the amount of "loss" caused by defendants Hugh and Robert Nastasi. Because the involvement of defendants AnthonyNastasi and Jose Davila in the defendants' scheme appears to be markedly less substantial than that of Hugh and Robert Nastasi, the Court will not attribute any "loss" to those defendants.On November 14, 1989, Hugh Nastasi was convicted in the United States District Court for the Southern District of New York of conspiring to defraud the Medicare and Medicaid programs, and making a false statement inan application for Medicare benefits, in connection with the provision of ambulance and ambulette services by companies he owned in Brooklyn, New York. As a result of that conviction, HHS notified Nastasi that he wasexcluded from participating in the Medicare and Medicaid programs for a period of 25 years.Because of his exclusion from the Medicare and Medicaid programs, Nastasi was unable to obtain a Medicare or Medicaid provider number for any entity which he owned or controlled. Accordingly, Nastasi participated in a schemepursuant to which a number of entities (the Nastasi Companies) were set-up to provide and bill for ambulance and ambulette services. Although the Nastasi Companies were, in actuality, owned and operated by Nastasi, other individuals, including defendants Anthony Nastasi (Hugh Nastasi's brother), Robert Nastasi (Hugh and Anthony Nastasi's other brother), and Jose Davila were listed on the Medicare/Medicaid applications as owners of the Nastasi Companies. As a result of this scheme, Medicare and Medicaid paidapproximately $57 million to the Nastasi Companies.Each of the individual defendants pleaded guilty to conspiring to defraud HHS as a result of the scheme described above. The United States Probation Department then prepared pre-sentence reports ("PSR's") for each of the individual defendants. In the PSR's, the Probation Department calculatedthe amount of "loss" attributable to each of the defendants as follows:Hugh Nastasi, $57,060,402 (including the entire amount paid to the Nastasi Companies by Medicare and Medicaid); Robert Nastasi, $57,125,252 (includingthe entire amount paid to the Nastasi Companies by Medicare and Medicaid); Anthony Nastasi, $24,982,982 (representing the entire amount paid by Medicare and Medicaid to the particular Nastasi Companies with whichAnthony Nastasi was associated); and Jose Davila, $3,914,675 (representing the entire amount paid by Medicare and Medicaid to the particular Nastasi Company with which Davila was associated). These figures appear to have been calculated pursuant to application note 8(d) of Section 2F.1.1 of the Guidelines. The government asserts that this is the proper way to calculatethe "loss" in this case, because "Medicare and Medica[id] reimbursements were diverted from lawful provider recipients to the Nastasi companies, who properly were excluded from participation in these programs." (August 3,2001 letter from AUSA Timothy Macht to Hon. I. Leo Glasser, at 4.)Because of the pronounced impact these amounts have on the defendants' calculated offense levels under Section 2F1.1 of the Guidelines, the defendants have objected to the calculation of "loss" in the PSR's. According to the defendants, this case does not involve the diversion ofgovernment program benefits. Rather, the defendants assert that "what actually took place was that [the defendants were] able to fraudulently procure Medicaid and Medicare provider contracts by virtue of certainmisrepresentations as to the ownership and control of [the companies], made in the 1998 and 1999 health care provider enrollment application forms."(August 15, 2001 letter from John W. Mitchell, Esq. to Hon. I. Leo Glasser, at 4.) Therefore, the defendants argue that application note 8(b) to Section 2F1.1 should apply, and, calculated pursuant to that application note, no loss is properly attributable to the defendants.Pursuant to Section 2F1.1(b)(1) of the Guidelines, the base offense level for offenses involving fraud or deceit is increased based on the amount of"loss." The obvious question, then, is: how should the Court calculate the "loss" in this case? To answer this question, the Court first looks toapplication note 8 of Section 2F1.1. That note states "[v]aluation of loss is discussed in the commentary to §2B1.1 (Larceny, Embezzlement, and OtherForms of Theft). As in theft cases, loss is the value of the money, property or services unlawfully taken; it does not, for example, include interest the victim could have earned on such funds had the offense notoccurred." [n3] However, application note 8 goes on to say that there are certain instances where additional factors should be considered to calculate "loss," and then lists "Fraudulent Loan Application and Contract Procurement Cases" (application note 8(b)) and "Diversion of Government Program Benefits" (application note 8(d)) as specific types of cases wherethe "loss" should be calculated differently.Thus, the question the Court must answer is whether this case involves the "Diversion of Government Program Benefits," as the government argues, orrather involves the fraudulent procurement of contracts by the defendants, as defendants argue. While at first blush answering this question may appear to be complicated, the Court finds that resolution of this issue issimple.There can be no serious dispute (and the defendants do not argue otherwise) that the Medicare and Medicaid payments received by the defendants are "government program benefits." Although this term is undefined in theGuidelines, it is patently obvious that Medicare and Medicaid are "government programs" that provide "benefits" by paying for certain basicmedical care rendered to indigent persons or persons over 65. Accordingly, if those "benefits" were "diverted from intended recipients," application note 8(d) should apply.The defendants argue that there has been no "diversion" in this case, because the "intended recipients" of the Medicare and Medicaid benefits are the individuals on whose behalf health care services were provided. In other words, because the Nastasi Companies actually provided services to individuals qualified for Medicare or Medicaid benefits, there has been no "diversion" of benefits. (See August 15, 2001 letter from John W. Mitchell, Esq. to Hon. I. Leo Glasser, at 4.) The Court rejects this argument, as it is belied by the language of the application note.The critical word in the application note is "recipients." Recipients are persons who receive, or come into possession of, something. Webster's NewWorld Dictionary, College Edition 1213 (1959). Medicare and Medicaidqualified individuals do not receive anything directly from those programs, as the programs do not provide healthcare directly to qualified individuals. Rather, those programs reimburse health care providers for services rendered on behalf of qualified individuals. Therefore, the"recipients" of the "benefits" provided by the Medicare and Medicaid programs are the entities which receive payments from those programs on behalf of Medicare or Medicaid qualified individuals. Accordingly, the"intended recipients" of those benefits are not, as the defendants argue, individuals qualified for Medicare or Medicaid, but instead are entitiesqualified to participate in, and receive reimbursement from, thoseprograms. [n4] Because the Nastasi Companies should have been excluded from participation in the Medicare and Medicaid programs, they were not "intended recipients" under the programs, and thus the "benefits" of thoseprograms were "diverted."The defendants assert that "[t]his is not a case ... where a benefit intended for one person or class of persons was fraudulently diverted to some different or ineligible person or class of persons." (Id.) Thedefendants are wrong; that is precisely what occurred in this case. The flaw in defendants' logic has been exposed by the analysis set forth above:Medicare and Medicaid payments were fraudulently diverted from intended recipients - qualified providers under the Medicare and Medicaid programs - to the Nastasi Companies.The Court's conclusion is bolstered by Section 2F1.1(b)(4)(C) of the Guidelines. That section states that if an offense involves "a violation of any prior, specific judicial or administrative order, injunction, decree or process not addressed elsewhere in the guidelines," the base offense level is increased by 2 levels. The conduct of the defendants in this case implicates Section 2F1.1(b)(4)(C), because that conduct was undertaken to circumvent HHS's prior order excluding Nastasi from participating in theMedicare and Medicaid programs. The Guidelines therefore suggest that the conduct involved in this case should be treated more harshly than that in a garden-variety fraud case, reinforcing the conclusion that the entireamount paid by Medicare and Medicaid constitutes the appropriate amount of the "loss."For all these reasons, this case falls squarely within the Sixth Circuit's holding in United States v. Brown, 151 F.3d 476 (6th Cir. 1998). There, thedefendants were convicted of fraud relating to the provision of Section 8 housing benefits. The defendants, who administered the program, were supposed to place applicants for benefits on a waiting list, and then select persons from that waiting list in a particular order. However, thedefendants accepted bribes and other consideration from a number of friends and other individuals in return for choosing those individuals, out of order, off the waiting list. At sentencing, the district court calculatedHUD's loss as all the funds paid to persons improperly selected from the waiting list, notwithstanding the fact that those persons were qualified toreceive Section 8 benefits. On appeal, the defendants argued - as do the defendants here - that HUD had not incurred a loss, because all the persons selected for Section 8 benefits were qualified to receive those benefits, even though those persons were selected out of order. The Sixth Circuit rejected this argument, and affirmed the district court's loss calculation.The appellate court held that by choosing persons out of order, thedefendants "diverted or attempted to divert funds from the recipients contemplated by the application regulations; as the district court observed, it is irrelevant that the actual recipients were financiallyeligible, give the fact that they were certainly not 'next in line' for benefits. There was, therefore, an actual diversion of funds ...." 151 F.3d at 489 (emphasis added). The same result must obtain here: because theNastasi Companies were not eligible to receive Medicare and Medicaid payments, it is irrelevant that they actually provided services on behalfof individuals qualified to receive benefits under those programs. See also United States v. Bros. Constr. Co. of Ohio, 219 F.3d 300, 318 (4th Cir. 2000) (rejecting argument that government entity sustained no loss because funds ultimately were received by entity qualified to receive them).The defendants cite a number of cases in support of their argument that application note 8(b) should apply. (See August 15, 2001 letter from John W. Mitchell, Esq. to Hon. I. Leo Glasser, at 6-7.) None of those cases, however, involved the diversion of government benefits. For example, United States v. Hayes, 242 F.3d 114 (3d Cir. 2001), concerned an individual whomisrepresented her background in order to obtain a job with the New Jersey Division of Youth and Family Services. United States v. Vivit, 214 F.3d 908 (7th Cir. 2000), involved the submission of false claims to insurance companies, while United States v. Maurello, 76 F.3d 1304 (3d Cir. 1996), involved the unauthorized practice of law by a disbarred attorney. Accordingly, these cases are inapposite.The defendants also argue that calculating "loss" in accordance with application note 8(b) conforms with the Guidelines' intention that "calculation of 'loss' should be tied to the 'actual' or 'net loss' thedefendant's conduct caused." (August 15, 2001 letter from John W. Mitchell, Esq. to Hon. I. Leo Glasser, at 2-3.) This argument is meritless. Clearly, the Guidelines frequently contemplate that something other than"actual" or "net loss" should be used to determine "loss." See, e.g., U.S.S.G. §2F1.1 cmt. n.8(b) (where intended loss greater than actual loss, intended loss isto be used); U.S.S.G. §2B1.1 cmt. n.2 ("In the case of a defendantapprehended taking a vehicle, the loss is the value of the vehicle even if the vehicle is recovered immediately.") (emphasis added); United States v. Mucciante, 21 F.3d 1228, 1238 (2d Cir. 1994) ("Under section 2F1.1, lossdoes not always equal the actual financial harm suffered by thevictim....Under the Guidelines, loss includes the value of all property taken, even though all or part of it was returned.") (internal quotation marks and citations omitted). Furthermore, holding the defendants responsible for the entire amount billed to Medicare would be consistent with the definition of "loss" provided in application note 8, because that sum would equal "the value of the money ... unlawfully taken."For the foregoing reasons, the Court will calculate "loss" in this case in accordance with application note 8(d) to Section 2F1.1 of the Guidelines.However, the Court will attribute the loss calculated pursuant to that application note only to defendants Hugh and Robert Nastasi, and not defendant Anthony Nastasi or defendant Jose Davila. The evidence in thiscase suggests that Anthony Nastasi and Jose Davila were not involved in the management or operation of the Nastasi Companies, but rather simply allowed their names to be listed as nominal owners of certain of the Nastasi Companies as part of the scheme to obtain Medicare and Medicaid billing numbers. In the absence of any evidence indicating that Anthony Nastasi and Jose Davila were anything more than mere employees of the Nastasi Companies, the Court will not attribute any loss to those defendants.The Court notes that, to the extent that either Hugh or Robert Nastasi believes that attributing the entire amount paid by Medicare and Medicaid to him "overstate[s] the seriousness of [his] offense," he can ask theCourt for a downward departure. U.S.S.G. §2F1.1 cmt. n.11. Similarly, if the government believes that attributing no loss to Anthony Nastasi or JoseDavila "does not fully capture the harmfulness and seriousness of [their] conduct," it can request an upward departure. Id.Finally, the Court will briefly address the defendants' Apprendi arguments. In their submissions, the defendants argue that, because the government did not present the amount of any"loss" to the grand jury,"pursuant to the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), [the government]may not now seek to enhance the defendants['] sentence on the basis of the alleged magnitude of the loss caused." (August 15, 2001 letter from John W. Mitchell, Esq. to Hon. I. Leo Glasser, at 7.) In support of this argument, the defendants cite two opinions of Judge Nickerson, United States v.Norris, 128 F. Supp. 2d 739 (E.D.N.Y. 2001), and United States v. Norris, 143 F. Supp. 2d 243 (E.D.N.Y. 2001), where Judge Nickerson held that Apprendi applied to factors used to enhance sentences under the Guidelines. This Court, however, rejects the defendants' argument for two reasons. First, since the defendants submitted their briefs to the Court, the Second Circuit vacated Judge Nickerson's opinions in the Norris case, and held that "Apprendi has no application to Guidelines enhancements." UnitedStates v. Norris, 281 F.3d 357, 360 (2d Cir. 2002); see also United States v. Thomas, 274 F.3d 655, 663- 64 (2d Cir. 2001). Second, the Court notes that none of the defendants have yet been sentenced, and thus any Apprendiclaim is premature. In any event, only Hugh Nastasi's guideline range has been calculated as possibly exceeding the statutory maximum. Accordingly, Apprendi is inapplicable with respect to the other defendants, and, as forHugh Nastasi, no Apprendi claim will lie so long as the sentence imposed, which has not yet been determined, does not exceed the statutory maximum.So Ordered.FootNotes:[n1]. Another defendant, Carl Bowen, has pleaded guilty to a related misdemeanor offense. This Memorandum and Order therefore does not apply toBowen.[n2]. The Court notes that the Guidelines were amended, effective November 1, 2001, and that Section 2F1.1 of the Guidelines was deleted as part ofthat amendment. Under the revised version of the Guidelines, "loss" in fraud cases is calculated under a revised version of Section 2B1.1 of the Guidelines. Under this new version of Section 2B1.1, each of the defendantswould fare worse than he would have under the prior version of the Guidelines. Accordingly, the Court will sentence the defendants under the version of the Guidelines that existed at the time the defendants pleadedguilty. See United States v. Keller, 58 F.3d 884, 889 (2d Cir. 1995) ("Generally, a sentencing court must use the version of the guidelines in effect at the time of the defendant's sentencing, not that extant at the time of the offense. Yet, when the guidelines are amended after thedefendant commits a criminal offense, but before he is sentenced, and the amended provision calls for a more severe penalty than the original one,those guidelines in effect at the time the offense was committed govern the imposition of sentence.") (internal citations omitted). The Guidelinesreferred to herein therefore are the Guidelines in existence on February 22, 2001.[n3]. Application note 2 to Section 2B1.1 uses the same definition of "loss," i.e., "the value of the property taken, damaged or destroyed."[n4]. This is not to say that, under different facts, individuals cannot be the"intended recipients" of "benefits" under the Medicare and Medicaid programs. For the purposes of calculating "loss" under the facts of this case, however, the Court finds that the "intended recipients" of the"benefits" provided by the programs are the health care providers.7. Child molestation charges, involvement in ambulance companies that were defrauding Medicare and Medicaid programs for $57 million. All of this came out in October 1995 at the same time. Yet Rabbi Brenner didn't serve one single day in jail. How?Maybe this article provides the answer:>Nastasi was ratted out by a >former business partner who was >under investigation in an >unrelated case and turned >government witness against>him.Nice deal.Daily News (NY)December 13, 2002HEADLINE: AMBULANCE FIRM OWNER GETS 6 YRS.BYLINE: By JOHN MARZULLI DAILY NEWS STAFF WRITERThe former owner of five Brooklyn ambulance companies was sentencedyesterday to 6 1/2 years in prison for health care fraud and ordered to repay the government $57 million.Hugh Nastasi was barred in 1989 by the Department of Health and Human Services from participating in Medicaid and Medicare programs for 25 years after he was convicted of fraud in connection with ambulance companies heowned at the time. But Nastasi defied the ban in 1994 and went back into ambulance services by hiding his ownership in the lucrative companies, according to AssistantU.S. Attorney Keir Dougall.Nastasi was ratted out by a former business partner who was under investigation in an unrelated case and turned government witness againsthim.And now Nastasi's broke."He's a rags to riches to rags story," said defense lawyer WalterLesnevich. "It was a huge ambulance operation. But now he doesn't have themeans to pay $57."The $57 million restitution figure represents the total amount Nastasi's companies billed Medicaid and Medicare for services since 1994.The government seized Nastasi's ambulances and other assets of the five companies: Metro-1 Ambulance Service, Dell Ambulance and Oxygen, Rio Ambulance, Metro-1 Ambulette and Dell Ambulette.Nastasi, 52, the son of a stevedore, now lives with his sister in Brooklyn.Judge had questionBefore handing down the sentence, Brooklyn Federal Judge Leo Glasserwondered why Nastasi blatantly violated a court order to stay out of the ambulance business.His lawyer had a ready explanation."He liked helping people," Lesnevich said. "He did a lot of good, but some part of it was fraudulent."Nastasi's brothers, Anthony and Robert, also pleaded guilty to conspiring to conceal their sibling's role in the companies.
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