United States v. Amalya Cherniavsky

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 24, 2018
• Docket: 16-50060
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 24 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50060

Plaintiff-Appellee, D.C. No. 2:13-cr-00668-TJH-2 v.

AMALYA CHERNIAVSKY, AKA MEMORANDUM* Amalya Surenovna Yegiyan,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Terry J. Hatter, District Judge, Presiding

Argued and Submitted July 10, 2018 Pasadena, California

Before: BERZON and N.R. SMITH, Circuit Judges, and CASTEL,** District Judge.

Amalya Cherniavsky appeals her conviction for multiple counts of

healthcare fraud and conspiracy to commit healthcare fraud in violation of 18

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable P. Kevin Castel, United States District Judge for the Southern District of New York, sitting by designation. U.S.C. §§ 1347, 1349. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

1. Sufficiency of the Evidence. There was sufficient evidence to convict

Cherniavsky. Cherniavsky (1) owned JC Medical Supply and filled out and signed

the Medicare provider application; (2) was educated on the Medicare rules and

regulations; (3) managed the office and the document filing system (which

contained extensive missing paperwork and fraudulent documents); (4) handled

Medicare inspections; (5) responded to audit requests with fraudulent documents;

(6) signed a majority of the checks for JC Medical, including at least one of the

kickback checks; and (7) lied to Medicare investigators when asked whether her

husband owned a medical business, which he did when the question was initially

asked. Although there is rarely “direct proof of one’s specific wrongful intent,”

“willfulness may be inferred from circumstantial evidence of fraudulent intent.”

United States v. Dearing, 504 F.3d 897, 901 (9th Cir. 2007) (citation and quotation

marks omitted). Here, “viewing the evidence in the light most favorable to the

prosecution,” there was sufficient evidence such that “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

2 2. Jury Instructions. The district court did not commit plain error by failing

to instruct the jury that Medicare regulations do not require durable medical

equipment (DME) providers to evaluate whether the medical equipment was

necessary. Medicare’s lack of a requirement that DME providers must investigate

the medical necessity of a piece of equipment has no bearing on whether

Cherniavsky violated or conspired to violate 18 U.S.C. § 1347. Cherniavsky was

not charged with ordering medically unnecessary equipment, but, rather,

knowingly and willfully participating in a scheme to procure and fabricate the

documents necessary to defraud Medicare. As such, any defense by Cherniavsky

on this basis would not have been “viable.” Cf. United States v. Bear, 439 F.3d

565, 569-71 (9th Cir. 2006) (finding plain error where defense was “viable”).

3. Federal Rule of Appellate Procedure 28(i). Cherniavsky may not adopt the

arguments in her husband’s briefing. “Rule 28(i) does not apply to cases which are

not consolidated.” United States v. Carpenter, 95 F.3d 773, 774 n.1 (9th Cir.

1996). Here, counsel was fully aware the cases were no longer consolidated,

because Cherniavsky’s and her husband’s appeals were severed before counsel

filed Cherniavsky’s opening brief. Accordingly, Cherniavsky has waived her

evidentiary claims because she failed to make independent arguments regarding

those claims on appeal. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).

3 4. Restitution. The district court did not plainly err in its restitution order.

Cherniavsky explicitly requested the restitution amount be $615,418, and the

district court imposed that amount. Affirmatively arguing for a specific restitution

amount is clear waiver. See United States v. Perez, 116 F.3d 840, 845 (9th Cir.

1997).

AFFIRMED.