United States v. Hakop Gambaryan

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 29, 2018
• Docket: 16-50409
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50409

Plaintiff–Appellee, D.C. No. 2:14-cr-00249-ODW v.

HAKOP GAMBARYAN, MEMORANDUM*

Defendant–Appellant.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Submitted March 28, 2018** Pasadena, California

Before: REINHARDT and WARDLAW, Circuit Judges, and KORMAN,*** District Judge.

Hakop Gambaryan was convicted of health care fraud in violation of 18

U.S.C. § 1347, and was sentenced to eighty-four months in prison. On appeal, we

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. held that the eighteen-level loss enhancement based on the amount of the fraud was

unsupported by clear and convincing evidence, and that an enhancement for

defrauding a federal health care program violated the ex post facto clause. United

States v. Gambaryan, 654 Fed. App’x. 888 (9th Cir. 2016). We observed, however,

that the absence of the federal health care program enhancement might be canceled

out by the addition of the abuse-of-trust enhancement, which applied to medical

supply providers. Id. at 891 (citing United States v. Adebimpe, 819 F.3d 1212, 1214

(9th Cir. 2016)).

On remand, the district judge applied the abuse-of-trust enhancement, holding

that Adebimpe was “directly on point,” and justified a two-level enhancement for

abuse of trust. The judge then calculated the sentencing range to be fifty-one to sixty-

three months, and resentenced Gambaryan to sixty-three months in prison. On this

appeal, Gambaryan argues that the district court erred in relying on Adebimpe to

increase his offense level for abuse of a position of trust. We disagree.

1. While Gambaryan is correct that Adebimpe “did not hold that all medical

suppliers hold a position of public or private trust,” the district court did not clearly

err in finding that Gambaryan did. See United States v. Jennings, 711 F.3d 1144,

1146 (9th Cir. 2013) (factual findings supporting a sentencing enhancement are

reviewed for clear error). In Adebimpe, testimony revealed that “[b]oth the physician

and the equipment supplier have responsibility to ensure the patient receives the appropriate equipment,” and that there exists “an independent responsibility for each

side to get it right.” Adebimpe, 819 F.3d at 1216. Evidence also showed that the

medical documentation for the wheelchairs was “woefully inadequate,” and that

recipients testified “nobody had assessed their homes to determine whether their

homes could accommodate the wheelchairs.” Id. Under these circumstances, the

evidence established that suppliers “have professional obligations separate from

those of a physician.” Id. at 1219.

Similar evidence was presented here. Fraud investigator Monica Nolan

testified that durable medical equipment suppliers such as Gambaryan have a duty

to confirm the medical necessity of prescription equipment even though they are not

physicians writing prescriptions. Kurt Soo Hoo, an investigator with the Department

of Health and Human Services, testified that none of the power wheelchairs had been

prescribed by a primary care physician with adequate knowledge of the patient, and

that patient files contained hundreds of photocopied beneficiary signatures,

including some of beneficiaries who had died before the date on their patient file.

Finally, wheelchair recipients testified that Gambaryan never took measurements or

conducted inspections of their homes upon delivery of the wheelchairs to ensure that

the equipment could be properly used. On this record, the district court did not

clearly err in finding that Gambaryan occupied a position of trust because of his

independent obligation to ensure that the wheelchairs were appropriate, and bore that responsibility when submitting claims to Medicare that he verified were truthful and

accurate. See Adebimpe, 819 F.3d. at 1220.

2. The district court did not plainly err in ordering Gambaryan to pay $696,851

in restitution to Medicare. Gambaryan presented no evidence to support his

statement at sentencing that he had already reimbursed Medicare $100,000, and the

Pre-Sentence Report indicated the opposite—that Gambaryan lacked sufficient

funds to make restitution payments.1

AFFIRMED.

1 The motion to withdraw as counsel by the Office of the Federal Public Defender for the Central District of California is granted. Attorney Michael Tanaka is substituted in as counsel, effective March 2, 2018.