Ninth Circuit Affirms Fraud Conviction of Man Who Posed as Doctor

Monday, January 11, 2016

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Ninth Circuit Affirms Fraud Conviction of Man Who Posed as Doctor

Defendant, 89, Faces 17½-Year Prison Sentence

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals has affirmed the 2014 mail and wire fraud conviction of a con artist, now 89, who posed as a licensed physician and engengered false hope in terminally ill patients who paid for, and underwent, useless and risky stem cell implantation surgeries.

Defendant Alfred T. Sapse, who was sentenced to 17½ years in prison and ordered to pay more than $1 million in restitution, was tried along with a licensed doctor, pediatrician Ralph Conti, who performed the surgeries. Conti died three weeks after the jury verdicts, with the cause of death undetermined.

—AP

ALFRED T. SAPSE

The likelihood of Sapse being able to make restitution appeared as unlikely as his being able to spend 17½ years in a penal facility; according to prosecutors, he spent most of the money in casinos.

Thursday’s opinion affirming the judgment of conviction came in a per curium memorandum opinion, filed without hearing oral argument. The case was assigned to Judges John T. Noonan, Kim Wardlaw, and Richard Paez.

FDA Involvement

The case had been investigated by the Office of Criminal Investigations of the Food and Drug Administration (“FDA”) before being turned over to prosecutors. On appeal, Sapse argued that he was denied his right to put on a defense because the judge barred evidence of FDA “politics.”

The appeals court made short shrift of the contention, saying:

“Appellant failed to establish the connection between the FDA’s politics and the issues in the case. Therefore, the district court properly excluded this evidence as being irrelevant.”

Sapse—he maintained that he was a retired doctor who was trained in Romania and Ukraine—insisted that the trial court impermissibly shifted the burden to him to establish his academic credentials. The Ninth Circuit panel responded:

“Appellant relied on these credentials as part of his defense but did not provide documentation corroborating them in response to a government subpoena. This court reviews de novo whether a district court shifted the burden of proof to the defendant….The government did not argue that Appellant’s failure to provide documentation confirming his credentials required a guilty verdict, and the district court instructed the jury that Appellant did ‘not have to prove his innocence or introduce any evidence at all.’ Therefore, the trial court did not impermissibly permit the government to shift the burden of proof.”

Sentence Enhanced

Sapse also insisted that the district judge erred in enhancing his sentence based on abuse of a position of trust and obstruction of justice. The panel said that because he made no such contention at the time of sentencing, cognizance will be taken of any defect only if there is “plain error” which should have been obvious to the judge even without an objection.

The opinion said:

“The record adequately supports the district court’s determination that Appellant promoted his background as a ‘reputed physician and as a researcher’ in committing fraud; therefore the district court did not plainly err in applying this adjustment.

“The obstruction of justice enhancement applies where a defendant committed perjury or provided materially false statements to a law enforcement officer during the course of an investigation….The record adequately supports the district court’s finding that Appellant perjured himself by testifying falsely about his educational background and that he made false statements to law enforcement officials who were investigating him. Thus, the district court did not commit plain error in applying a sentencing adjustment for an obstruction of justice.”

The case is U.S.A. v. Sapse, 13-10592.