United States v. Kirk

In United States v. Kirk, No. 23-30048 (5th Cir. Jan. 11, 2024) (unpublished), the Fifth Circuit remanded the case for the district court to make more detailed findings before determining how much money the defendant must forfeit.

The defendant had been the CEO of a non-profit corporation that operated medical clinics inside Louisiana schools, and a jury convicted him of conspiring to defraud Medicaid while in that role. The Government agreed with Kirk that the district court had erred by failing to resolve a factual dispute before entering an order of forfeiture in the amount of $234,789.87.

Before sentencing, the Government had argued for the $234,789.87 forfeiture amount. It reasoned that 45% of the corporation’s revenue was derived from the fraud so the defendant should be ordered to forfeit 45% of his salary and bonuses from the period while he was committing the fraud.

The defendant disputed the 45% claim, arguing that only 18% of the corporation’s total revenue was based on fraud, so he requested a forfeiture order no higher than $75,957. He also presented financial statements to support his argument. At sentencing, however, neither the court nor the Government addressed his argument, and the district court entered a forfeiture order for the higher amount.

The Fifth Circuit agreed that the district court erred by failing to resolve that factual dispute before determining the appropriate forfeiture amount, so the case was remanded for the district court to make more explicit factual findings before reconsidering the forfeiture order.

The district court separately rejected the defendant’s challenge to his $30,000 fine because the PSR had indicated that the defendant had sufficient cash flow and assets to pay that fine.