U.S. v. Kaufman

546 F.3d 1242

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Arlan Dean KAUFMAN, Defendant-Appellant, and Linda Joyce Kaufman, Defendant-Appellant/Cross-Appellee.

No. 06-3099.

No. 06-3124.

No. 06-3125.

No. 07-3151.

United States Court of Appeals, Tenth Circuit.

November 12, 2008.

Howard A. Pincus, Assistant Federal Public Defender, Denver, Colorado (Raymond P. Moore, Federal Public Defender, Denver, Colorado, with him on the briefs), for the Defendant-Appellant Arlan Dean Kaufman.

Richard A. Hostetler, Esq., Denver, Colorado, for the Appellant/Cross-Appellee Linda Joyce Kaufman.

Tanya J. Treadway, Assistant United States Attorney, District of Kansas, (Eric F. Melgren, United States Attorney, District of Kansas, and Wan J. Kim, Assistant Attorney General, Civil Rights Division, United States Department of Justice, with her on the brief), for the Plaintiff/Cross-Appellant United States of America.

Lisa J. Stark (Eric F. Melgren, United States Attorney, District of Kansas; Tanya J. Treadway, Assistant United States Attorney, District of Kansas; Grace Chung Becker, Acting Assistant Attorney General, United States Department of Justice; Jessica Dunsay Silver and Conor B. Dugan, Attorneys, United States Department of Justice, with her on the brief), for the Plaintiff-Appellee United States of America.

Before HENRY, Chief Judge, and BRORBY and McCONNELL, Circuit Judges.

HENRY, Chief Judge.

In November 1999, Butler County, Kansas, deputy sheriffs observed two men working in the nude on a farm outside the town of Newton. As the deputies approached, the defendant, Arlan Kaufman, a doctor of social work who owned the farm and was fully clothed, directed the two workers into a nearby van, where they put on their clothes. Dr. Kaufman explained that the workers were residents of the Kaufman House Residential Care Treatment Center (the Kaufman House), an unlicensed group home for the mentally ill that he owned and operated with his wife, the defendant Linda Kaufman, a licensed nurse.

The deputies' discovery led to an extended investigation of the Kaufman House by county, state, and federal authorities. They learned that, over a period of more than fifteen years, the Kaufmans had directed the severely mentally ill residents of the Kaufman House to perform sexually explicit acts and farm labor in the nude while maintaining that these acts constituted legitimate psychotherapy for the residents' mental illnesses. Moreover, the Kaufmans billed Medicare and the residents' families for the therapy.

In 2005, a federal grand jury charged the Kaufmans with violating the involuntary servitude and forced labor statutes, health care fraud, mail fraud, and obstructing a federal audit. The government also sought forfeiture of the Kaufmans' assets. A jury convicted each of the Kaufmans of the following offenses: conspiracy (under 18 U.S.C. § 371); two counts of forced labor (under 18 U.S.C. § 1589); three counts of involuntary servitude (under 18 U.S.C. § 1584); sixteen counts of health care fraud (under 18 U.S.C. § 1347); nine counts of mail fraud (under 18 U.S.C. § 1341); one count of obstructing a federal audit (under 18 U.S.C. § 1516); and one count of criminal forfeiture (under 18 U.S.C. § 982). The jury convicted Dr. Kaufman of an additional count of submitting a false document to Medicare (under 18 U.S.C. § 1035).

The district court sentenced Dr. Kaufman to 360 months' imprisonment, upwardly varying from the Guideline range of 160-210 months. In contrast, the court sentenced Mrs. Kaufman to eighty-four months' imprisonment, a downward variance from a Guideline range of 135-168 months. In support of that decision, the court reasoned that Mrs. Kaufman had probably been convicted as an aider and abettor rather than a principal, that she had a dependent personality disorder, and that she had accepted responsibility for the offenses.

The Kaufmans now appeal their forced labor and involuntary servitude convictions, arguing that the district court: (1) violated their rights under the Confrontation Clause of the Sixth Amendment by ordering them to avoid eye contact with the former Kaufman House residents who testified against them at trial without making particularized findings sufficient to justify that restriction; and (2) erred in instructing the jury on the elements necessary to prove the involuntary servitude and forced labor convictions by failing to limit the definitions of "labor" and "services" to "work in an economic sense." Dr. Kaufman's Aplt's Br. at 60. The Kaufmans further argue that (3) the evidence is insufficient to support their convictions on the involuntary servitude count that involved the Kaufman House residents providing labor on the Kaufmans' farm. The Kaufmans acknowledge that they did not raise these issues in the district court proceedings and that, as a result, we may only overturn the challenged convictions by applying the plain error doctrine. See United States v. Barrett, 496 F.3d 1079, 1089 (10th Cir.2007) (discussing that doctrine), cert. denied, 128 ___ U.S. ___, 128 S.Ct. 1646, 170 L.Ed.2d 359 (2008).

In turn, the government has appealed Mrs. Kaufman's eighty-four month sentence, contending that it was both procedurally and substantively unreasonable. As to procedural unreasonableness, the government contends that the district court erred in declining to impose (1) a four-level enhancement in the offense level under section 2H4.1(b)(2)(A) of the United States Sentencing Guidelines (USSG) because Mrs. Kaufman used and aided and abetted in the use of a stun gun, which constituted a dangerous weapon; (2) a two-level enhancement under USSG § 3A1.1(b)(2) because Mrs. Kaufman committed offenses that involved a large number of vulnerable victims; and (3) a two-level enhancement under USSG § 3C1.1 because Mrs. Kaufman obstructed justice by interfering with a federal audit and investigations of the Kaufman House by the local sheriff, regulatory authorities, physicians, and family members of the residents.

The government also challenges the substantive reasonableness of Mrs. Kaufman's sentence, arguing that (4) Mrs. Kaufman played a central role in the offenses, did not accept responsibility for them, and should not have been afforded lenient treatment because of her alleged dependent personality disorder.

With regard to the Kaufmans' appeal, we affirm the challenged convictions. The no-eye-contact order causes us the greatest concern. In light of the Supreme Court's decisions in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) and Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the district court may have erred in limiting the opportunity for eye contact between the testifying witnesses and the Kaufmans without making findings sufficient to justify that restriction as to each individual witness. Nevertheless, even assuming that the district court plainly erred, the Kaufmans have failed to establish that the error affected their substantial rights — i.e., that there is "a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (internal quotation marks omitted). We further conclude that the district court did not plainly err in instructing the jury on the meaning of "labor" and "services" under the involuntary servitude and forced labor statutes and that the evidence is sufficient to support the Kaufmans' convictions on the involuntary servitude count involving labor on the Kaufmans' farm.

As to the government's appeal, we agree that Mrs. Kaufman's sentence is procedurally unreasonable. The record contains evidence supporting the "dangerous weapon" and "large number of vulnerable victims" enhancements under USSG §§ 2H4.1(b)(2)(A) and 3A1.1(b)(2), and the district court failed to make findings sufficient to justify its refusal to apply them. Moreover, the two-level enhancement for obstruction of justice under USSG § 3C1.1 is supported by the record. Accordingly, we remand the case for resentencing of Mrs. Kaufman and do not reach the government's contention that Mrs. Kaufman's sentence was substantively unreasonable.

I. FACTUAL BACKGROUND

The Kaufmans were the joint owners and managers of the Kaufman House Residential Care Treatment Center, an unlicensed residential home for the chronically mentally ill. They also owned a farm in neighboring Butler County, where some of the offenses occurred.

The Kaufman House actually consisted of three separate houses in Newton, Kansas. Two of the houses served as residences, while the third house served as an office, a meeting place, and the site of some of the "therapy" conducted by the Kaufmans. The Kaufmans acquired these properties in the 1970s. Initially, they were used to provide housing for college students and some mentally ill patients who could not be cared for in other institutions. By the early 1980s, the Kaufman House residents were all mentally ill patients, most of whom suffered from schizophrenia and schizoaffective disorders. Some of the residents lived at the Kaufman House for ten, fifteen, and even twenty years.

The Kaufmans' sole source of income over the period from 1981 until October 2004 (when they were arrested by federal authorities) was the money that they made from the Kaufman House. They obtained their income from room and board payments, Medicare proceeds, social security benefits, and supplemental insurance payments. The Kaufmans billed the government, insurance companies, and the residents' families for psychotherapy and nursing services that they provided at the Kaufman House.

A. Treatment of Residents at the Kaufman House

The nude farm labor that the Butler County Sheriff's deputies observed in November 1999 was only a small fraction of the unusual practices to which the Kaufman House residents were subjected. In ...