Opinion
Argued and Submitted November 13, 2006.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Daniel S. Linhardt, AUSA, Office of the U.S. Attorney, Sacramento, CA, for Plaintiff-Appellee.
Victor S. Haltom, Esq., for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California, Morrison C. England, District Judge, Presiding. D.C. No. CR-02-00151-MCE.
Before: SCHROEDER, Chief Circuit Judge, FARRIS and RAWLINSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Scott Vogelsang appeals his conviction on 22 counts of health care fraud in violation of 18 U.S.C. § 1347. He challenges the conviction on the ground that the district court abused its discretion in excluding testimony that Vogelsang characterized as evidence of third party culpability. The district court excluded the evidence for lack of sufficient probative value, and we agree. The evidence dealt with misconduct on the part of a supervisor in the claims processing office, but with respect to the handling of claims other than those submitted by Vogelsang. It is not evidence even suggesting that the supervisor could be guilty of the crimes with which Vogelsang was charged.
Vogelsang also challenges his sentence on the ground that the district court should have conducted an evidentiary hearing to determine the amount of loss caused by the fraud. The government introduced testimony calculating the amounts that Vogelsang had double billed. Vogelsang did not submit or proffer any evidence that the loss should be calculated differently. The amount was not reasonably in dispute so as to give rise to the
Page 663.
need for any evidentiary hearing. See U.S. S.G. § 6A1.3(a).
AFFIRMED.