United States v. Aleksandr Suris

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 16, 2021
• Docket: 20-50058
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50058

Plaintiff-Appellee, D.C. No. 2:17-cr-00420-SJO-1 v.

ALEKSANDR SURIS, AKA Aleks, AKA MEMORANDUM* Alex, AKA Sasha, AKA Aleksandr Yefimovich Suris,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 20-50059

Plaintiff-Appellee, D.C. No. v. 2:17-cr-00420-SJO-2

MAXIM SVERDLOV, AKA Maksim Sverdlov,

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Submitted February 11, 2021**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Pasadena, California

Before: O’SCANNLAIN, CALLAHAN, and OWENS, Circuit Judges.

Defendants Aleksandr Suris and Maxim Sverdlov appeal from their

convictions, 144-month sentences, and an $11.8 million restitution order for

conspiracy to commit health care fraud against Medicare and conspiracy to commit

money laundering. Suris also appeals from his convictions for conspiracy to

commit health care fraud and six counts of health care fraud involving Cigna. As

the parties are familiar with the facts, we do not recount them here. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

1. The Defendants argue that their convictions should be reversed because

they were based on the “inherently untrustworthy” and “implausible” testimonies

of two co-conspirators who had struck plea deals with the government. We review

challenges to the sufficiency of the evidence de novo, “and must determine

whether, viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Liew, 856 F.3d 585, 596 (9th Cir. 2017)

(internal quotation marks omitted). Here, the jury was fully aware of the plea deals

and had even been instructed to consider the extent to which the co-conspirators’

** The panel unanimously concludes these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 testimonies “may have been influenced by” the pleas. Because this court is

“powerless to question a jury’s assessment of witnesses’ credibility,” United States

v. Johnson, 229 F.3d 891, 894 (9th Cir. 2000), the Defendants’ arguments lack

merit. Furthermore, nothing in the record suggests that either co-conspirator’s

testimony was “incredible or insubstantial on its face,” United States v. Necoechea,

986 F.2d 1273, 1282 (9th Cir. 1993), and the Defendants’ other arguments

regarding deficiencies in the evidence conflict with the record and are thus

insufficient to overturn their convictions.

2. The Defendants also challenge their 144-month sentences on the basis

that the district court clearly erred when it calculated an $11.8 million loss

amount—a finding that resulted in a 20-level increase in the Defendants’ offense

levels under the U.S. Sentencing Guidelines. We review factual determinations,

including “the amount of loss in cases of fraud,” for clear error. United States v.

Popov, 742 F.3d 911, 914 (9th Cir. 2014). “Clear error review is significantly

deferential and requires us to accept the district court’s findings absent a definite

and firm conviction that a mistake has been committed.” Id. That standard has not

been met here. The district court calculated the loss amount by relying on a May

2015 “invoice reconciliation,” which the Defendants challenge as “unreliable”

because it was missing several months of wholesaler data. But the district court

only needs to make a “reasonable estimate of the loss” amount. U.S.S.G. § 2B1.1

3 cmt. n.3(C). It does not need “mathematical” certainty. United States v. Gainza,

982 F.3d 762, 765 (9th Cir. 2020). Moreover, given the evidence that the

reconciliation credited the Defendants’ pharmacy for known fake invoices and that

the wholesaler’s operations were mostly a sham, there is no “definite and firm

conviction” that the missing data would have reduced the loss calculation—let

alone enough to affect the Defendants’ sentences. Popov, 742 F.3d at 914; see also

U.S.S.G. § 2B1.1(b)(1)(K) (indicating that the Defendants would need a roughly

$2.3 million reduction in the calculated loss amount to affect their sentencing

range).

The Defendants also argue that the district court inadequately explained its

loss calculation, violating their due process rights. These arguments mirror their

substantive challenges to the reconciliation and can be rejected for the same

reasons. Furthermore, the district court adequately explained that it was choosing

the lower estimate to give the Defendants the “benefit of the doubt.”

3. Finally, the Defendants challenge their $11.8 million restitution order on

the ground that it is based on the “indisputably flawed and unreliable May 2015

Reconciliation.” Both parties agree that this challenge “collapses with the[]

challenge to the district court’s determination of the loss amount.” Because the

court did not err in finding an $11.8 million loss, it also did not err in ordering

$11.8 million in restitution.

4 AFFIRMED.