# The appeal was affirmed." **URL:** \ **Category:** Factual Questions\ **Created:** [September 28, 2016, 6:06pm UTC](https://boards.straightdope.com/t/the-appeal-was-affirmed/767135 "2016-09-28T18:06:22Z")\ **Posts on this page:** 3\ **Page:** 1
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [September 28, 2016, 6:06pm UTC](https://boards.straightdope.com/t/the-appeal-was-affirmed/767135/1 "2016-09-28T18:06:22Z")
A year or so ago I got a letter from the USDOJ, inviting me to give a victim impact statement at sentencing hearing of [Robert Kolbusz](https://www.justice.gov/usao-ndil/pr/suburban-dermatologist-convicted-cheating-medicare-and-private-insurers-26-million). I was not a victim – the victim was my uncle Owen, and since I was an heir and the executor of his estate, I was invited to testify on his behalf. [I did a thread about it.](http://boards.straightdope.com/sdmb/showthread.php?p=18434753) I did not testify or attend, and since then I’ve received maybe half a dozen more emails. His hearing was delayed, his hearing was delayed, he has filed an appeal, etc. Today the email said Kolbusz’s “appeal was confirmed”. I presume this to mean that the conviction was overturned. Can anyone explain to me why my uncle is listed as a victim? This guy was convicted of 6 counts of fraud – presumably against Medicare and a number of insurance companies. My best guess is that he used my uncle’s name to submit allegedly false medical records and test results to make insurance reimbursement claims. The narrative is that he did this for hundreds of patients and collected millions in fraudulent claims. Is every one of these people a “victim” – even if they weren’t the ones paying out the money? Does it matter if they knew the doctor was doing this? My uncle died several years before this guy was ever charged – I didn’t see any indication in my uncle’s medical records that he paid any bills to the guy, or was aware of any diagnosis. It’s even possible his name was thrown onto a “patient” list after he was already dead. What makes a “victim” in a case like this? ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [September 28, 2016, 7:29pm UTC](https://boards.straightdope.com/t/the-appeal-was-affirmed/767135/2 "2016-09-28T19:29:24Z")
It sounds like the email you received may have been awkwardly phrased. What they were trying to convey is that the appellate court affirmed his conviction; i.e., the guilty verdict was upheld. [Here](http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D09-21/C:15-2962:J:Easterbrook:aut:T:fnOp:N:1831859:S:0) is a copy of the appellate court’s decision. I have not read anything about the case except the appellate court’s opinion. It is probably accurate to say, as you surmise, that the United States (via Medicare) was the victim of the specific false-billing crimes with which he was charged. However, one element of that crime was that the procedures that he billed for were not medically valid, so any patients actually suffering from the condition that he supposedly was treating may have been victims in the sense that they did not receive adequate care. [QUOTE=Seventh Circuit Court Of Appeals] The evidence at trial permitted a reasonable jury to conclude that many if not substantially all of these claims could not have reflected an honest medical judgment—and that the treatment Kolbusz claimed to have supplied may have failed to help any patient who actually had actinic keratosis. [/QUOTE] ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [September 28, 2016, 7:42pm UTC](https://boards.straightdope.com/t/the-appeal-was-affirmed/767135/3 "2016-09-28T19:42:54Z")
Thanks very much for that link. FYI, this is the exact language in the email: > [@](#): > > …The appeal in the case of defendant(s), ROBERT KOLBUSZ, was decided on September 21, 2016. The appeal was affirmed. > Through the Victim Notification System (VNS) we will continue to provide you with updated scheduling and event information as the case proceeds through the criminal justice system. You may obtain current information about this case on the VNS website at [https://www.notify.usdoj.gov](https://www.notify.usdoj.gov) or from the VNS Call Center at 1-866-DOJ-4YOU (1-866-365-4968) (TDD/TTY: 1-866-228-4619) (International: 1-502-213-2767). In addition, you may use the Call Center or Internet to update your contact information and/or change your decision about participation in the notification program. … The decision you linked to says this: > [@](#): > > …His lead appellate argument is that the district judge constructively > amended the indictment by permitting the prosecutor > to present evidence that he submitted false claims on > behalf of more than six patients. The indictment charged six > particular frauds, so that must be the limit of the evidence, > the argument runs. Yet the indictment charged a scheme to > defraud (that’s what §1341 and §1343 cover). The prosecutor > was entitled to prove the scheme as a whole, and not just the > six exemplars laid out in the indictment. … So now I wonder if my uncle was one of the 6 names selected as exemplars in the original charges.