Case 2:07-cr-00344-GLL Document 18 Filed 03/17/08 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v.
ALFONSO ANTONIO COSTA

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Criminal No. 07-344

RESPONSE TO MEMORANDUM IN AID OF SENTENCING
AND NOW comes the United States of America by Mary Beth
Buchanan,

United

States

Attorney

for

the

Western

District

of

Pennsylvania, and James Y. Garrett, Assistant U.S. Attorney for said
district, and files the following:
The offense for which Alfonso Costa is to be sentenced
arose from a health care fraud scheme of several years duration
beginning in approximately 1995, involving false insurance billing
for dental care.

In the government’s investigation, over 50

patients confirmed that certain procedures billed by Dr. Costa or
associates of his dental practice had not been performed as billed.
In most cases the nature or extent of the dental services provided
were exaggerated to increase the value of the insurance payment,
such as by falsely claiming extraction of impacted, rather than
erupted wisdom teeth, resulting in a loss to insurers of more than
$40,000.

This sum was computed by subtracting the amount of

reimbursement payable for the services actually performed from the
payments received on the false claims.

 Case 2:07-cr-00344-GLL Document 18 Filed 03/17/08 Page 2 of 4

Counsel for Dr. Costa has filed an extensive memorandum
urging the Court to grant leniency, arguing among other things that
the smallness of the loss in comparison to the defendant’s personal
wealth indicates that the false billing was a subjectively trivial
aspect of his practice of dentistry, and that his extensive good
works

and

generosity

to

charitable

causes

counterbalance

the

fraudulent conduct.
However,

while

it

is

true

that

the

dollar

loss

is

relatively small, its subjective importance does not derive from the
size of the sum.

Interviews of patients and employees of the

defendant’s dental practice indicate that the reason for the false
billing was not the revenue directly generated as a result, but
rather that it was a component of an effort to build the volume of
the business. Prospective patients were frequently offered valuable
but illicit inducements for their business in the form of waiver of
economic limitations on their insurance coverage such as copay
requirements.

The

false

overbilling

for

the

dental

services

actually provided simply offset the cost of these inducements, and
thus effectively caused insurers to fund expansion of the business.
Defendant succeeded well in building the practice with the
help of these inducements: he sold the business to his co-defendant,
Roberto Michienzi, in 1997-98 for a price in excess of $1 million,
in addition to a companion agreement for consulting and one day of

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 Case 2:07-cr-00344-GLL Document 18 Filed 03/17/08 Page 3 of 4

oral surgeries performed monthly which paid him an additional
$10,000 each month.
With regard to defendant’s involvement with charity, the
Sentencing Guidelines disfavor consideration of a defendants' prior
good works, which are deemed "not ordinarily relevant," §5H1.11.
Nevertheless, the government acknowledges that this is a factor the
Court may consider in the exercise of its discretion. United States
v. Cooper, 394 F 3rd 172 (3rd Cir. 2005).

But as has frequently been

observed, no one is 100% good or bad.

Since this truism was

undoubtedly understood by the Sentencing Commission in formulating
the

Sentencing

Guidelines,

there

is

obviously

no

inherent

incompatibility between a history of good works and imposition of
a sentence based on the Guidelines.
While defendant apparently suggests that charitable good
works speak unambiguously of good character, to the contrary there
is at least a potential for selfish motivation underlying such
conduct.

Ego may drive actions appearing unselfish on the surface,

and a person such as defendant Costa having substantial financial
resources can readily feed this drive.
Character and social behavior are complex matters, and it
is impossible objectively to know the defendant’s sincerity.

But

what can be said with certainty is that reduction of a sentence
based on good works by a wealthy person can create the appearance
that a defendant’s financial resources and prominent connections can

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 Case 2:07-cr-00344-GLL Document 18 Filed 03/17/08 Page 4 of 4

skew the justice system in ways not available to persons of lesser
means. The government urges that the risk of such perception should
be avoided by imposition of a sentence based on the Sentencing
Guidelines.

Respectfully submitted,
MARY BETH BUCHANAN
United States Attorney
s/ James Y. Garrett
JAMES Y. GARRETT
Assistant U.S. Attorney
U.S. Post Office and Courthouse
700 Grant Street
Suite 4000
Pittsburgh, Pennsylvania 15219
(412) 894-7364 (Phone)
(412) 894-7311 (Fax)
james.garrett@usdoj.gov
PA12466

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