CA1: health fraud losses and sentencing

US v. Yelaun, No. 07-1651 (8/27/08).  This is a health fraud case.  The guy was convicted of getting paid for tests not done.  There is a variance issue.  But, the First says “gotcha” the indictment was sort of vague (as to what checks) were used, and the defense should have asked for a bill of particulars. 

The big issue, as I see it, is the sentencing issues:

The first is a rather generic Blakely objection to amount of loss.  There is a question as to whether the conspiracy was “extensive” and apparently five people makes a conspiracy extensive.

In dealing with a 404(b) objection, the First says that some evidence wasn’t admitted to show character, but rather context.    This is just standard trial jockeying.  Of course, you can get in evidence of someone’s bad character.  Just call it something else.