FILED +Corrected April 24, 2014 FEB 11 2014
MOLLY C. DWYER, CLERK NOT FOR PUBLICATION U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10045 Plaintiff - Appellee, D.C. No. 2:08-cr-00427-MCE-6 v. ALEXANDER POPOV, MEMORANDUM* Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-10553 Plaintiff - Appellee, D.C. No. 2:08-cr-00427-MCE-7 v. RAMANATHAN PRAKASH, Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-10389 Plaintiff - Appellee, D.C. No. 2:08-cr-00427-MCE- v. EFB-5
LANA LeCHABRIER,
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted November 5, 2013 San Francisco, California
Before: REINHARDT and WATFORD, Circuit Judges, and +LASNIK,** District Judge.
Ramanathan Prakash and Lana LeChabrier appeal their convictions of
conspiracy to commit health care fraud and health care fraud. Prakash and
Alexander Popov appeal the district court’s applications of multiple sentencing
enhancements. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.1
1. Neither Prakash nor LeChabrier has shown that the district court abused
its discretion when it denied their motions to continue the trial. United States v.
Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985). Beyond labeling the government’s
expert “the key government witness,” Prakash has not shown that his defense
suffered actual prejudice as a result of the court’s decisions denying him a
** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation.+ 1 In a simultaneously filed published opinion we vacate the district court’s findings regarding the amount of loss intended by Popov and Prakash for sentencing purposes and remand for resentencing on that issue only.
2 continuance to obtain a rebuttal expert witness. United States v. Wilkes, 662 F.3d
524, 543 (9th Cir. 2011) (“Where the denial of a continuance prevents the
introduction of specific evidence, the prejudice inquiry focuses on the significance
of that evidence.”) (quoting United States v. Rivera-Guerrero, 426 F.3d 1130, 1142
(9th Cir. 2005)). Moreover, the district court reasonably considered Prakash’s
failure to act diligently to prepare his case for trial when it denied his motions. See
Flynt, 756 F.2d at 1359.
Similarly, in light of LeChabrier’s admissions that she signed Medicare
enrollment forms, opened a bank account to receive Medicare payments, and
signed patient charts for the Richmond clinic even though she never examined a
single patient, LeChabrier has not established that the verdict would have been
different had she been granted a continuance to secure a handwriting expert’s
testimony. Wilkes, 662 F.3d at 543. Because the parties had been in trial for a
month when LeChabrier moved for a continuance, the court properly considered
the inconvenience to the court and the government in denying the request. See
2. This court reviews a district court’s formulation of jury instructions for
abuse of discretion, unless the defendant failed to object at trial, in which case, the
instructions are reviewed for plain error. United States v. Chi Mak, 683 F.3d 1126,
3 1133 (9th Cir. 2012). A district court’s finding that a factual foundation does not
exist to support a jury instruction proposed by the defendant is reviewed for an
abuse of discretion. United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th
Cir. 2001). Prakash argues that the district court erred by not giving a4 multiple
conspiracies instruction because there was evidence from which the jury could
have concluded that he was part of a smaller conspiracy involving just one clinic.
Whether Prakash was aware of the other clinics or other physicians involved in the
overall scheme is not determinative, however, because “a single conspiracy can
include subgroups or subagreements.” United States v. Mincoff, 574 F.3d 1186,
1196 (2009) (internal quotations and citation omitted).
Although the district court declined to give the multiple conspiracies
instruction, the court gave the standard conspiracy instruction setting forth the
elements of a conspiracy, as well as Ninth Circuit Model Criminal Jury Instruction
8.23, Knowledge of and Association with Other Conspirators. These instructions
were sufficient to address Prakash’s defense theory that he was not involved in the
conspiracy alleged in the indictment because he was not aware of the other clinics
or the other doctors who submitted Medicare claims on behalf of those clinics.
The district court therefore did not abuse its discretion when it denied Prakash’s
request to give the multiple conspiracies instruction. United States v. Fernandez,
4 388 F.3d 1199, 1248 (9th Cir. 2004).
3. We reject Prakash’s argument that the district court punished him for
going to trial by calculating the amount of loss for sentencing purposes based on
the total amount billed to Medicare. Even though the government’s loss
calculations in the plea agreements2 in this case are dramatically different from its
loss calculations for defendants who exercised their constitutional rights to trial, “a
sentencing disparity based on cooperation is not unreasonable.” United States v.
Carter, 560 F.3d 1107, 1121 (9th Cir. 2009) (“[S]o long as there is no indication
the defendant has been retaliated against for exercising a constitutional right, the
government may encourage plea bargains by affording leniency to those who enter
pleas. Failure to afford leniency to those who have not demonstrated those
attributes on which leniency is based is unequivocally . . . constitutionally
proper.”) (internal quotation marks and citation omitted).
4. We review a district court’s construction and interpretation of the United
States Sentencing Guidelines Manual (“Guidelines”) de novo, the district court’s
application of the Guidelines to the facts of the case for abuse of discretion, and the
district court’s factual findings for clear error. United States v. Kimbrew, 406 F.3d
1149, 1151 (9th Cir. 2005). Contrary to Prakash’s and Popov’s arguments, the
2 Prakash’s argument is based entirely on the government’s representations in plea agreements and not on the sentences actually imposed by the court.
5 Guidelines’ sophisticated means enhancement “properly applies to conduct less
sophisticated than the list articulated in the application note.” United States v.
Jennings, 711 F.3d 1144, 1147 (9th Cir.
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FILED +Corrected April 24, 2014 FEB 11 2014
MOLLY C. DWYER, CLERK NOT FOR PUBLICATION U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10045 Plaintiff - Appellee, D.C. No. 2:08-cr-00427-MCE-6 v. ALEXANDER POPOV, MEMORANDUM* Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-10553 Plaintiff - Appellee, D.C. No. 2:08-cr-00427-MCE-7 v. RAMANATHAN PRAKASH, Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-10389 Plaintiff - Appellee, D.C. No. 2:08-cr-00427-MCE- v. EFB-5
LANA LeCHABRIER,
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted November 5, 2013 San Francisco, California
Before: REINHARDT and WATFORD, Circuit Judges, and +LASNIK,** District Judge.
Ramanathan Prakash and Lana LeChabrier appeal their convictions of
conspiracy to commit health care fraud and health care fraud. Prakash and
Alexander Popov appeal the district court’s applications of multiple sentencing
enhancements. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.1
1. Neither Prakash nor LeChabrier has shown that the district court abused
its discretion when it denied their motions to continue the trial. United States v.
Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985). Beyond labeling the government’s
expert “the key government witness,” Prakash has not shown that his defense
suffered actual prejudice as a result of the court’s decisions denying him a
** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation.+ 1 In a simultaneously filed published opinion we vacate the district court’s findings regarding the amount of loss intended by Popov and Prakash for sentencing purposes and remand for resentencing on that issue only.
2 continuance to obtain a rebuttal expert witness. United States v. Wilkes, 662 F.3d
524, 543 (9th Cir. 2011) (“Where the denial of a continuance prevents the
introduction of specific evidence, the prejudice inquiry focuses on the significance
of that evidence.”) (quoting United States v. Rivera-Guerrero, 426 F.3d 1130, 1142
(9th Cir. 2005)). Moreover, the district court reasonably considered Prakash’s
failure to act diligently to prepare his case for trial when it denied his motions. See
Flynt, 756 F.2d at 1359.
Similarly, in light of LeChabrier’s admissions that she signed Medicare
enrollment forms, opened a bank account to receive Medicare payments, and
signed patient charts for the Richmond clinic even though she never examined a
single patient, LeChabrier has not established that the verdict would have been
different had she been granted a continuance to secure a handwriting expert’s
testimony. Wilkes, 662 F.3d at 543. Because the parties had been in trial for a
month when LeChabrier moved for a continuance, the court properly considered
the inconvenience to the court and the government in denying the request. See
2. This court reviews a district court’s formulation of jury instructions for
abuse of discretion, unless the defendant failed to object at trial, in which case, the
instructions are reviewed for plain error. United States v. Chi Mak, 683 F.3d 1126,
3 1133 (9th Cir. 2012). A district court’s finding that a factual foundation does not
exist to support a jury instruction proposed by the defendant is reviewed for an
abuse of discretion. United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th
Cir. 2001). Prakash argues that the district court erred by not giving a4 multiple
conspiracies instruction because there was evidence from which the jury could
have concluded that he was part of a smaller conspiracy involving just one clinic.
Whether Prakash was aware of the other clinics or other physicians involved in the
overall scheme is not determinative, however, because “a single conspiracy can
include subgroups or subagreements.” United States v. Mincoff, 574 F.3d 1186,
1196 (2009) (internal quotations and citation omitted).
Although the district court declined to give the multiple conspiracies
instruction, the court gave the standard conspiracy instruction setting forth the
elements of a conspiracy, as well as Ninth Circuit Model Criminal Jury Instruction
8.23, Knowledge of and Association with Other Conspirators. These instructions
were sufficient to address Prakash’s defense theory that he was not involved in the
conspiracy alleged in the indictment because he was not aware of the other clinics
or the other doctors who submitted Medicare claims on behalf of those clinics.
The district court therefore did not abuse its discretion when it denied Prakash’s
request to give the multiple conspiracies instruction. United States v. Fernandez,
4 388 F.3d 1199, 1248 (9th Cir. 2004).
3. We reject Prakash’s argument that the district court punished him for
going to trial by calculating the amount of loss for sentencing purposes based on
the total amount billed to Medicare. Even though the government’s loss
calculations in the plea agreements2 in this case are dramatically different from its
loss calculations for defendants who exercised their constitutional rights to trial, “a
sentencing disparity based on cooperation is not unreasonable.” United States v.
Carter, 560 F.3d 1107, 1121 (9th Cir. 2009) (“[S]o long as there is no indication
the defendant has been retaliated against for exercising a constitutional right, the
government may encourage plea bargains by affording leniency to those who enter
pleas. Failure to afford leniency to those who have not demonstrated those
attributes on which leniency is based is unequivocally . . . constitutionally
proper.”) (internal quotation marks and citation omitted).
4. We review a district court’s construction and interpretation of the United
States Sentencing Guidelines Manual (“Guidelines”) de novo, the district court’s
application of the Guidelines to the facts of the case for abuse of discretion, and the
district court’s factual findings for clear error. United States v. Kimbrew, 406 F.3d
1149, 1151 (9th Cir. 2005). Contrary to Prakash’s and Popov’s arguments, the
2 Prakash’s argument is based entirely on the government’s representations in plea agreements and not on the sentences actually imposed by the court.
5 Guidelines’ sophisticated means enhancement “properly applies to conduct less
sophisticated than the list articulated in the application note.” United States v.
Jennings, 711 F.3d 1144, 1147 (9th Cir. 2013).
Based on the evidence in the record that Prakash and Popov applied for
Medicare provider numbers, opened bank accounts to use as part of the scheme,
reviewed and signed patient charts that reflect significant testing even though
neither doctor saw a single patient, and signed Medicare reimbursement forms and
blank redetermination request forms for a clinic involved in the overall scheme, the
district court reasonably could have concluded that the scheme was significantly
more complex than a routine Medicare fraud case.
5. The district court did not err in applying a two-level sentence
enhancement under U.S.S.G. § 3C1.1 for obstruction of justice. Even assuming
that the failure to disclose Prakash’s trust assets to the United States probation
officer and the district court was the result of his attorneys’ errors, Prakash
neglects the impact of the recorded jail calls during which Prakash (1) directed his
son to take steps to hide his assets from the government, (2) agreed to move assets
to avoid detection, and (3) agreed to make false statements to the court about his
failing health and weight loss. The district court properly found that Prakash
provided false and misleading information to the probation officer and the court,
6 and that he encouraged and directed the obstructive conduct of others. See United
States v. Reyes, 577 F.3d 1069, 1083 (9th Cir. 1996) (“[T]he defendant is
accountable for his own conduct and for conduct that he aided or abetted,
counseled, commanded, induced, procured, or willfully caused.”) (quoting
U.S.S.G. § 3C1.1 cmt. 9).
6. We reject Prakash’s challenge to the two-level sentencing enhancement
that the district court applied for conduct involving “the conscious or reckless risk
of death or serious bodily injury.” U.S.S.G. § 2B1.1(12) (2007). Although
Prakash did not supervise the examinations performed or the services provided at
the Sacramento clinic, he signed the patient charts and the Medicare
reimbursement forms indicating that he had and there was evidence that these
services produced a serious risk to the patients’ health. “In light of our deferential
standard of review, we cannot say that the district court clearly erred in finding that
[Prakash’s] conduct posed a risk of serious bodily injury or death, even if we
would not have made the same finding.” United States v. Awad, 551 F.3d 930,
941-42 (2009) (upholding district court’s application of enhancement for conscious
or reckless risk in health care fraud case where defendant’s consistent failure to
supervise jeopardized patients’ health).
7. Because the record below is sufficient for us to review LeChabrier’s
7 limited claim of ineffective assistance, we consider and reject her claim that
counsel’s failure to obtain a handwriting expert constituted ineffective assistance
of counsel under Strickland v. Washington, 466 U.S. 668 (1984). United States v.
Rivera-Sanchez, 222 F.3d 1057, 1060 (9th Cir. 2000) (“We will only review
ineffective assistance claims on direct appeal where the record is sufficiently
developed to permit review and determination of the issue, or the legal
representation is so inadequate that it obviously denies a defendant his Sixth
Amendment right to counsel.”) (internal quotation marks and citation omitted).
Here, LeChabrier’s trial counsel’s failure to pursue a handwriting expert was
not deficient because she told counsel that she did, in fact, sign Medicare forms
and there was no reason to question her statements. See Strickland, 466 U.S. at
691 (“[W]hen a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.”). Nor was this failure
prejudicial to her defense. The record shows that LeChabrier admitted signing
Medicare enrollment forms, opened a bank account to receive Medicare payments,
and signed patient charts for one of the clinics without ever seeing a patient. Thus,
we conclude that LeChabrier has failed to demonstrate that she was deprived of the
effective assistance of counsel.
8 8. During oral argument, LeChabrier conceded that she waived any claim
she may have had under the Speedy Trial Act by failing to move for dismissal prior
to trial. See 18 U.S.C. § 3162(a)(2); United States v. Tanh Huu Lam, 251 F.3d
852, 860 (9th Cir. 2001). We therefore decline to consider her arguments related
to the Speedy Trial Act.
AFFIRMED.