United States v. Hakop Gambaryan ( 2018 )

NOT FOR PUBLICATION FILED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.