FILED NOT FOR PUBLICATION JUL 24 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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. 16-50389
Plaintiff-Appellee, D.C. No. 2:13-cr-00666-SJO-1 v.
VALERY BOGOMOLNY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding
Argued and Submitted July 10, 2018 Pasadena, California
Before: BERZON and N.R. SMITH, Circuit Judges, and CASTEL,** District Judge.
Valery Bogomolny appeals his conviction for six counts of healthcare fraud.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* 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. 1. Jury Instructions. The district court did not commit plain error in its jury
instructions. First, Instruction No. 14 clearly stated that it applied only to the
indictment. The indictment did not articulate that the jury may convict based on
two different mental states, but, rather (in the conjunctive) charged Bogomolny
with violating 18 U.S.C. § 1347 in the two possible substantive ways outlined in
the statute. Instruction No. 14 merely stated that the prosecution did not have to
prove Bogomolny had violated 18 U.S.C. § 1347 in both of those ways. Second,
Instruction No. 15 correctly stated that the prosecution had to prove that
Bogomolny violated 18 U.S.C. § 1347 “knowingly and willfully.” This was the
correct mental state for healthcare fraud. “Juries are presumed to follow jury
instructions.” United States v. Scott, 642 F.3d 791, 800 (9th Cir. 2011) (per
curiam). It would be incorrect to conclude that the jury took an instruction clearly
relating to the indictment and applied it to the jury instruction outlining the
elements of health care fraud.
2. Double Counting. The district court did not plainly err by imposing the
United States Sentencing Guidelines (USSG) aggravating-role and abuse-of-trust
enhancements. Bogomolny was not subject to double counting. See United States
v. Park, 167 F.3d 1258, 1261 (9th Cir. 1999). First, each enhancement applies to
different “kind[s] of harm.” Cf. id. at 1261 (quoting United States v. Reese, 2 F.3d
2 870, 895 (9th Cir. 1993)). The aggravating-role enhancement applied because of
Bogomolny’s supervisory role, U.S. Sentencing Guidelines Manual § 3B1.1(b)
(U.S. Sentencing Comm’n 2008) [hereinafter USSG], and the abuse-of-trust-
enhancement applied because he held a “position[] of trust with respect to
Medicare,” United States v. Adebimpe, 819 F.3d 1212, 1219 (9th Cir. 2016); see
also USSG § 3B1.3. Second, the USSG explicitly contemplate application of both
§ 3B1.3 and § 3B1.1(b). USSG § 3B1.3.
3. Aggravating-Role Enhancement. The district court did not abuse its
discretion by imposing an aggravating-role enhancement. See USSG § 3B1.1(b).
First, Bogomolny (1) was the sole owner of Royal Medical Supply and “made all
the decisions”; (2) authorized his staff to send documents under his name; (3) hired
several delivery drivers; and (4) had signatory authority on Royal Medical
Supply’s bank account. Thus, the district court did not clearly err by finding
Bogomolny was a “manager or supervisor.” USSG § 3B1.1(b). Second,
Bogomolny worked with delivery drivers and in-house staff, as well as doctors
who referred prescriptions to him. Therefore, the district court did not clearly err in
finding that the criminal activity involved “five or more participants or was
otherwise extensive.” Id.
3 4. Jury Prejudice. Bogomolny waived his jury prejudice claim. “[W]aiver is
the intentional relinquishment or abandonment of a known right.” United States v.
Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc) (citation and quotation marks
omitted). In response to the courtroom incident with Bogomolny’s brother,
Bogomolny’s counsel laid out a list of options (inquire whether the jury was
prejudiced, do nothing, or provide a limiting instruction), and specifically stated
that requesting an inquiry might not be the “best thing to do because it just draws
attention to the situation.” The district court stated it was open to “anything
reasonable,” but Bogomolny never revisited the issue. Bogomolny thus
“intentionally relinquished” his right to a hearing concerning jury prejudice. Id.
5. Prosecutorial Misconduct. First, the prosecution’s statement regarding the
nature of the case does not rise to plain error. The comments were factual
statements based on record evidence introduced during trial and, thus, not
“particularly egregious” conduct. See United States v. Ruiz, 710 F.3d 1077, 1085
(9th Cir. 2013) (quoting United States v. Sanchez, 659 F.3d 1252, 1256 (9th Cir.
2011)).
Second, the prosecution’s statement about “close relationship[s]” between
Bogomolny and various doctors was not plain error. The prosecution put on
evidence that a large number of the prescriptions (70 percent) were from a few
4 doctors and Bogomonly testified that he worked with Dr. Eisenberg’s office in San
Diego and when the doctor expanded to Fresno. A conclusion that there was a
“close relationship” with the doctors was a permissible inference from the record.
See United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993).
Third, the prosecution’s statement that Bogomolny “did all these deliveries”
was not plain error. The prosecution was referencing the delivery slips with
Bogomolny’s initials on them, which Bogomolny admitted “look[ed] like [his]
initial[s].” Further, Bogomolny testified that he “did all the deliveries [himself]”
during the first “four or five years,” and after that did much of the delivery work.
The prosecution’s statement was not an “egregious” misrepresentation. See Ruiz,
710 F.3d at 1085 (quoting Sanchez, 659 F.3d at 1256).
Fourth, the prosecution’s statement regarding Bogomolny’s passport was
harmless. Bogomolny argued that his Ukrainian passport was evidence that he was
out of the country during some of the charged offenses. The prosecutor stated that
only Bogomolny’s word supported that statement and did not mention the
Ukrainian passport. This was harmless. Bogomolny’s counsel raised the issue in
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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. 16-50389
Plaintiff-Appellee, D.C. No. 2:13-cr-00666-SJO-1 v.
VALERY BOGOMOLNY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding
Argued and Submitted July 10, 2018 Pasadena, California
Before: BERZON and N.R. SMITH, Circuit Judges, and CASTEL,** District Judge.
Valery Bogomolny appeals his conviction for six counts of healthcare fraud.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* 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. 1. Jury Instructions. The district court did not commit plain error in its jury
instructions. First, Instruction No. 14 clearly stated that it applied only to the
indictment. The indictment did not articulate that the jury may convict based on
two different mental states, but, rather (in the conjunctive) charged Bogomolny
with violating 18 U.S.C. § 1347 in the two possible substantive ways outlined in
the statute. Instruction No. 14 merely stated that the prosecution did not have to
prove Bogomolny had violated 18 U.S.C. § 1347 in both of those ways. Second,
Instruction No. 15 correctly stated that the prosecution had to prove that
Bogomolny violated 18 U.S.C. § 1347 “knowingly and willfully.” This was the
correct mental state for healthcare fraud. “Juries are presumed to follow jury
instructions.” United States v. Scott, 642 F.3d 791, 800 (9th Cir. 2011) (per
curiam). It would be incorrect to conclude that the jury took an instruction clearly
relating to the indictment and applied it to the jury instruction outlining the
elements of health care fraud.
2. Double Counting. The district court did not plainly err by imposing the
United States Sentencing Guidelines (USSG) aggravating-role and abuse-of-trust
enhancements. Bogomolny was not subject to double counting. See United States
v. Park, 167 F.3d 1258, 1261 (9th Cir. 1999). First, each enhancement applies to
different “kind[s] of harm.” Cf. id. at 1261 (quoting United States v. Reese, 2 F.3d
2 870, 895 (9th Cir. 1993)). The aggravating-role enhancement applied because of
Bogomolny’s supervisory role, U.S. Sentencing Guidelines Manual § 3B1.1(b)
(U.S. Sentencing Comm’n 2008) [hereinafter USSG], and the abuse-of-trust-
enhancement applied because he held a “position[] of trust with respect to
Medicare,” United States v. Adebimpe, 819 F.3d 1212, 1219 (9th Cir. 2016); see
also USSG § 3B1.3. Second, the USSG explicitly contemplate application of both
§ 3B1.3 and § 3B1.1(b). USSG § 3B1.3.
3. Aggravating-Role Enhancement. The district court did not abuse its
discretion by imposing an aggravating-role enhancement. See USSG § 3B1.1(b).
First, Bogomolny (1) was the sole owner of Royal Medical Supply and “made all
the decisions”; (2) authorized his staff to send documents under his name; (3) hired
several delivery drivers; and (4) had signatory authority on Royal Medical
Supply’s bank account. Thus, the district court did not clearly err by finding
Bogomolny was a “manager or supervisor.” USSG § 3B1.1(b). Second,
Bogomolny worked with delivery drivers and in-house staff, as well as doctors
who referred prescriptions to him. Therefore, the district court did not clearly err in
finding that the criminal activity involved “five or more participants or was
otherwise extensive.” Id.
3 4. Jury Prejudice. Bogomolny waived his jury prejudice claim. “[W]aiver is
the intentional relinquishment or abandonment of a known right.” United States v.
Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc) (citation and quotation marks
omitted). In response to the courtroom incident with Bogomolny’s brother,
Bogomolny’s counsel laid out a list of options (inquire whether the jury was
prejudiced, do nothing, or provide a limiting instruction), and specifically stated
that requesting an inquiry might not be the “best thing to do because it just draws
attention to the situation.” The district court stated it was open to “anything
reasonable,” but Bogomolny never revisited the issue. Bogomolny thus
“intentionally relinquished” his right to a hearing concerning jury prejudice. Id.
5. Prosecutorial Misconduct. First, the prosecution’s statement regarding the
nature of the case does not rise to plain error. The comments were factual
statements based on record evidence introduced during trial and, thus, not
“particularly egregious” conduct. See United States v. Ruiz, 710 F.3d 1077, 1085
(9th Cir. 2013) (quoting United States v. Sanchez, 659 F.3d 1252, 1256 (9th Cir.
2011)).
Second, the prosecution’s statement about “close relationship[s]” between
Bogomolny and various doctors was not plain error. The prosecution put on
evidence that a large number of the prescriptions (70 percent) were from a few
4 doctors and Bogomonly testified that he worked with Dr. Eisenberg’s office in San
Diego and when the doctor expanded to Fresno. A conclusion that there was a
“close relationship” with the doctors was a permissible inference from the record.
See United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993).
Third, the prosecution’s statement that Bogomolny “did all these deliveries”
was not plain error. The prosecution was referencing the delivery slips with
Bogomolny’s initials on them, which Bogomolny admitted “look[ed] like [his]
initial[s].” Further, Bogomolny testified that he “did all the deliveries [himself]”
during the first “four or five years,” and after that did much of the delivery work.
The prosecution’s statement was not an “egregious” misrepresentation. See Ruiz,
710 F.3d at 1085 (quoting Sanchez, 659 F.3d at 1256).
Fourth, the prosecution’s statement regarding Bogomolny’s passport was
harmless. Bogomolny argued that his Ukrainian passport was evidence that he was
out of the country during some of the charged offenses. The prosecutor stated that
only Bogomolny’s word supported that statement and did not mention the
Ukrainian passport. This was harmless. Bogomolny’s counsel raised the issue in
his closing argument, the jury had extensive testimony on the topic, and the
passports were placed into evidence.
5 Fifth, the prosecutor’s statements regarding Bogomolny’s truthfulness were
not plain error. “[I]t is neither unusual nor improper for a prosecutor to voice doubt
about the veracity of a defendant who has taken the stand.” United States v.
Phillips, 704 F.3d 754, 766 (9th Cir. 2012) (citation and internal quotation marks
omitted). Here, the prosecution’s statements regarding Bogomolny’s truthfulness
were reasonably inferred from the record. For example, regarding the delivery
signatures, Bogomolny admitted they looked like his initials, but denied that they
were actually his. It was not improper for the prosecutor to suggest that he was
lying.
Finally, the prosecutor’s statement that, to believe Bogomolny, the jury
would have to believe that everyone else was lying, was not plain error. It is not
improper for a prosecutor to argue that when there are two versions provided by
different witnesses, one cannot be true. United States v. Alcantara-Castillo, 788
F.3d 1186, 1194-95 (9th Cir. 2015). The prosecutor simply argued that
Bogomolny’s account and the accounts provided by the remaining witnesses could
not both be true. This was not an improper statement.
AFFIRMED.