United States v. Sardar Ashrafkhan ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0395n.06
Case No. 17-1918
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 10, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
SARDAR ASHRAFKHAN,
) DISTRICT OF MICHIGAN
Defendant-Appellant. )
)
BEFORE: BOGGS, GRIFFIN, and READLER, Circuit Judges
BOGGS, Circuit Judge.
This appendix to the published opinion contains the court’s decision on the remaining
issues that the defendant, Sardar Ashrafkhan, has brought on appeal. Ashrafkhan was convicted
of one count of conspiracy to distribute controlled substances, 21 U.S.C. §§ 841(a)(1), 846; one
count of healthcare-fraud conspiracy, 18 U.S.C. §§ 1347, 1349; and two counts of money
laundering, 18 U.S.C. § 1957. His remaining arguments are: (1) objections to his jury instructions;
(2) claims of prosecutorial misconduct; (3) claims of constructive amendment or prejudicial
variance; (4) appeal of his Rule 29 motion for a judgment of acquittal based on insufficient
evidence; and (5) various sentencing issues. For the following reasons, we affirm Ashrafkhan’s
conviction and sentence in full.
Case No. 17-1918, United States v. Ashrafkhan
I. BACKGROUND
A. Factual Background
We begin by reciting the relevant facts in more detail. Sardar Ashrafkhan was the owner
of Compassionate Doctors (“Compassionate”), a medical clinic he established in 2006. At trial,
the government introduced evidence showing that Compassionate was a sham clinic that did not
provide real medical care but was instead focused on writing fake prescriptions for individuals
who were neither ill nor seeking healthcare. These actions resulted in hundreds of thousands of
opioid-based drugs being distributed onto the street, with Compassionate collecting millions of
dollars from the fraudulent Medicare claims that it filed.
The scheme proceeded thusly: Compassionate would recruit associates whom they called
“marketers”—generally small-time criminals or drug dealers—who would themselves recruit fake
patients to the clinic. These patients were not ill, nor did they seek any real healthcare from
Compassionate. Instead, the “patients” would obtain fraudulent prescriptions from
Compassionate’s doctors—some of whom were indicted and convicted alongside Ashrafkhan1—
and Compassionate would then bill Medicare for these patient “visits.” According to testimony
from trial, Compassionate would generally pay a marketer in cash or checks each time a fake
patient that the marketer had recruited visited the clinic.
Compassionate marketers would also organize “patient parties,” where numerous fake
patients would gather at one location so that Compassionate doctors could write fraudulent
prescriptions en masse. The marketers would pay healthy individuals to attend these gatherings,
and they would be informed that the sole purpose of the gathering was for fraudulent prescriptions
1
We have recently affirmed the conviction and sentence of two of the doctors who worked at Compassionate and who
were indicted as part of the same conspiracy. See United States v. Pamatmat, 756 F. App’x 537 (6th Cir. 2018);
United States v. Geralt, 682 F. App’x 394 (6th Cir. 2017).
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to be written. Oftentimes, the “patient parties” would not even involve real doctors, and the
prescriptions would instead be written by unlicensed medical school graduates on blank
prescription forms that had been pre-signed by a licensed doctor working for Compassionate.
Compassionate employees who attended the parties would also create fake patient charts and
examination summaries to give the gatherings a semblance of legitimacy. For instance, each
patient would usually receive two prescriptions, one for a controlled substance and one for a non-
controlled maintenance medication such as a blood pressure or cholesterol drug so that the
fraudulent pain prescriptions would appear more legitimate. Worse yet, after Compassionate
doctors wrote the fake prescriptions, the clinic’s marketers would fill the prescriptions and sell the
drugs on the street, resulting in the distribution of millions of dollars’ worth of opioids. According
to the government, there was a tacit understanding that—in addition to the money that they were
paid by Compassionate to recruit fake patients—the marketers would also profit from the resultant
drug sales.
Although there was no indication that Ashrafkhan earned money from the drug sales on
the street, he earned money through other illegal means. First, Compassionate would fraudulently
bill Medicare for fake patient visits to the clinic. From January 1, 2007 to January 10, 2013,
Compassionate filed 65,649 Medicare Part B claims for patient visits and related procedural care,
claiming over $10 million in reimbursement, of which they were ultimately paid over $6.5 million.
The government claims that almost all of that amount was fraudulent. Second, Ashrafkhan earned
money through three associated home-healthcare companies that he also operated: Galaxy,
Preferred, and Procare. Similar to Compassionate, these three companies ostensibly provided
health services—through direct treatment at a patient’s home—but the government alleged that
they, too, engaged in Medicare fraud. Each company had a referral relationship with
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Compassionate, wherein Compassionate would send fake patients to the company so that the
“patient” could further obtain home therapies that he did not need. Compassionate would pay each
marketer between $300 and $500 if the marketer could sign someone up for home healthcare, but
the companies (and Ashrafkhan) benefited much more from the resultant fraudulent billing.
Records from 2007 to 2013 showed that Ashrafkhan’s home-healthcare companies billed Medicare
for over $3.2 million during that period; $1,062,925.46 from Galaxy, $1,159,714.93 from
Preferred, and $1,006,972.31 from Procare. The government alleged that most, if not all, of these
claims were fraudulent. Third, Ashrafkhan also earned money through kickbacks paid by the
pharmacies that Compassionate marketers used to fill the fraudulent prescriptions. Ashrafkhan
would steer marketers to fill prescriptions at specific pharmacies that would then pay Ashrafkhan
kickbacks to keep the prescriptions coming. Because the business was so profitable for the
pharmacies, they effectively developed a bidding war in terms of the amount of money they would
send to Ashrafkhan to keep the prescriptions coming.
B. Procedural Background
Ashrafkhan was indicted on January 10, 2013, and was charged with one count of
conspiracy to distribute controlled substances, 21 U.S.C. §§ 841(a)(1), 846; one count of
healthcare fraud conspiracy, 18 U.S.C. §§ 1347, 1349; and two counts of money laundering,
18 U.S.C. § 1957. Ashrafkhan’s indictment also charged forty-three co-defendants. Only
Ashrafkhan, along with Adelfo Pamatmat and John Geralt—two doctors employed by
Compassionate—chose to go to trial.
At trial, the government attempted to show that Ashrafkhan had full knowledge of the
illegal activities at Compassionate, and that he was the mastermind behind the scheme. Witnesses
testified that Ashrafkhan would personally pay Compassionate’s marketers in cash or checks, that
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Ashrafkhan knew that his doctors prescribed the pain medication fraudulently, and that he would
even encourage them to create fake patient charts or other documents to give Compassionate the
semblance of legitimacy. The jury also heard testimony that Ashrafkhan would “run everything”
at Compassionate, and that he was “the godfather” of the entire operation.
Ashrafkhan’s attorneys argued at trial that he was completely unaware of any of the illegal
activity at Compassionate and that much of the government’s evidence at trial actually implicated
a competing clinic, the Visiting Doctors of America (“VDA”), which was founded in early 2009
by a former Compassionate employee, Mohammed Ali Malik. For example, Ashrafkhan’s defense
noted that he had hired Malik to work at Compassionate in May of 2008, but that Malik worked
there for less than a year before establishing VDA; and that much of the illegal activity—including
the “patient parties”—were actually organized by VDA or individuals who had been with
Compassionate but later left to join VDA. The defense claimed that for most of the time that Malik
worked at Compassionate, Ashrafkhan was away on religious pilgrimages, and so any illegal
activity traced to Compassionate during that period was because of Malik. Although the
indictment implicated VDA as being engaged in part of the same drug-distribution and healthcare-
fraud conspiracy as Compassionate (several individuals affiliated with VDA were also indicted)
Ashrafkhan’s defense at trial was that Compassionate was free of any wrongdoing, and that the
true conspiracy centered on VDA. One of Ashrafkhan’s main arguments on appeal is that, due to
errors on the part of the district court, the evidence at trial tended to conflate the illegal activities
of VDA with the legitimate activities at Compassionate.
The jury convicted Ashrafkhan of all charges. Following his conviction, Ashrafkhan filed
a Rule 29 motion for a judgment of acquittal, arguing that there was insufficient evidence to
support a conviction, but the district court rejected the motion, noting that there was more than
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enough testimony at trial that the jury could have credited to return a conviction. Ashrafkhan’s
Presentence Report (PSR) computed his total offense level at forty-three. The guideline
imprisonment range was life imprisonment, but the statutory maximum for his convictions was
600 months. Ashrafkhan was sentenced to an aggregate term of twenty-three years of
imprisonment; 240 months for the drug-distribution conspiracy count, 120 months for the
healthcare-fraud-conspiracy count—with 36 months to run consecutively and the remaining 84
months to run concurrently—and 120 months for the two money-laundering counts, to run
concurrently.
Ashrafkhan timely appealed, making a variety of arguments that can be grouped into one
of five general categories: (1) objections to his jury instructions; (2) claims of prosecutorial
misconduct; (3) claims of constructive amendment or prejudicial variance; (4) appeal of his Rule
29 motion for a judgment of acquittal based on insufficient evidence; and (5) sentencing issues.
We address each in turn.
II. DISCUSSION
Ashrafkhan did not object to many of the alleged errors that he now presents on appeal in
the proceedings below. Therefore, we will review these arguments for plain error. To succeed on
plain-error review, Ashrafkhan will need to demonstrate that there was an “(1) error (2) that was
obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity,
or public reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th
Cir. 2008) (en banc) (citation and internal quotation marks omitted). Moreover, for an error to
have substantially affected Ashrafkhan’s rights, he must demonstrate that there is “‘a reasonable
probability that, but for the error,’ the outcome of the proceeding would have been different.”
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Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (quoting United States v.
Dominguez Benitez, 542 U.S. 74, 76, 82 (2004)).
A. Jury Instructions
Ashrafkhan challenged three aspects of the jury instructions the district court gave at trial:
(1) the language of the district court’s reasonable-doubt instruction; (2) the decision to instruct the
jury on the possibility of deliberate ignorance; and (3) the decision to not give, sua sponte, an
instruction regarding the possible existence of multiple conspiracies. We held—in the published
portion of this opinion—that the district court did not abuse its discretion in giving specific the
reasonable-doubt instruction that it gave. Ashrafkhan never objected to the district court’s
deliberate-ignorance instruction at trial, nor did he request an instruction on multiple conspiracies.
Because these arguments were not raised below, we review the district court’s decisions for plain
error. See United States v. Semrau, 693 F.3d 510, 527 (6th Cir. 2012).
1. Deliberate-Ignorance Instruction
Ashrafkhan argues that the district court should not have instructed the jury that it could
find that he had knowledge of the illegal activities at Compassionate if he “deliberately ignored a
high probability that material false and fraudulent statements were being made.”2 Ashrafkhan
claims that a deliberate-ignorance instruction should not have been given in a prosecution focused
mainly on charges of conspiracy because a conspiracy requires an agreement to commit illegal
2
The complete instruction is as follows:
No one can avoid responsibility for a crime by deliberately ignoring the obvious. Therefore, if you
are convinced that a defendant deliberately ignored a high probability that material false and
fraudulent statements were being made, then you may find that he knew those statements were being
made. But to find this, you must be convinced beyond a reasonable doubt that the defendant you are
considering was aware of a high probability that false and fraudulent statements were being made,
and that the defendant deliberately closed his eyes to what was obvious. Carelessness or negligence
or foolishness on his part is not the same as knowledge and is not enough to convict. This, once
again, is all for you to decide.
This followed the Sixth Circuit’s model jury instructions. See Sixth Circuit Pattern Criminal Jury Instructions 2.09.
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activity that cannot be made if the defendant deliberately ignored such activity. However,
Ashrafkhan’s characterization of a conspiracy charge is inaccurate. To sustain a conviction on a
conspiracy charge, “[t]he government need not show a formal written agreement; a simple
understanding between the parties will suffice.” United States v. Beverly, 369 F.3d 516, 532 (6th
Cir. 2004). Indeed, to be convicted of conspiracy, the defendant does not need to be very actively
engaged in the scheme, but need only to “know of the conspiracy, associate himself with it, and
knowingly contribute his efforts in its furtherance.” United States v. Barger, 931 F.2d 359, 369
(6th Cir. 1991) (citation omitted). We have thus approved of courts giving a deliberate-ignorance
instruction in conspiracy cases. See United States v. Mitchell, 681 F.3d 867, 876–79 (6th Cir.
2012); United States v. Myint, 455 F. App’x 596, 604 (6th Cir. 2012).
A deliberate-ignorance instruction is appropriate when “(1) the defendant claims a lack of
guilty knowledge; and (2) the facts and evidence support an inference of deliberate ignorance.”
Mitchell, 681 F.3d at 876. Both parts are satisfied here. Ashrafkhan’s defense at trial centered on
his supposed lack of knowledge of the unlawful activities occurring at Compassionate. In opening
statements, Ashrafkhan’s counsel stated that “the trial is largely about state of mind” and that the
evidence presented at trial would “take[] away the criminal state of mind [the government] are
trying to convince you that [Ashrafkan] has.” Despite this contention, there was more than enough
evidence to “support an inference of deliberate ignorance.” Ibid. One witness testified that
Ashrafkhan personally directed unlicensed medical-school graduates to see patients, but then file
claims as if the visits had been performed by a licensed doctor. When asked whether it would have
been possible that Ashrafkhan did not know that the graduates were unlicensed or that the claims
were billed incorrectly, the witness stated that Ashrafkhan “directed us to do it like this” and that
he would personally interview potential hires at Compassionate so there was no way that he did
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not know each employee’s medical background. The witness further explained that Ashrafkhan
would show employees how to fill out the billing forms, and that he told them the goal of the
billing was “to get as much money as you can from the patient’s insurance company, which was
Medicare.” Another witness testified that Ashrafkhan would pay marketers for signing up patients,
and that he knew the marketers would fill the prescriptions and later sell the drugs on the street.
These examples show that there was at least an inference to support Ashrafkhan’s deliberate
ignorance of the healthcare fraud, if not outright knowledge of it. The district court thus did not
err in giving a deliberate-ignorance instruction.
2. Failure to Give an Instruction on Multiple Conspiracies
Ashrafkhan’s last challenge to the jury instructions involves an instruction that the district
court did not give. According to Ashrafkhan, evidence at trial showed the existence of multiple
conspiracies, all of which centered on VDA rather than Compassionate. He claims that many of
the government’s cooperating witnesses at trial were former VDA employees, and that their
testimony either intentionally or negligently conflated much of the illegal activity they performed
at VDA with the legal activities they did while at Compassionate. Even though at trial the
government had suggested that VDA and Compassionate were involved in the same conspiracy
(and indeed, several individuals who had worked with both clinics were charged in the indictment),
Ashrafkhan argues that the district court’s decision not to give a multiple-conspiracies instruction
unfairly prejudiced him by allowing the jury to convict him for crimes that were not committed at
Compassionate. See Sixth Circuit Pattern Criminal Jury Instructions 3.08.
On plain-error review for a failure to give a multiple-conspiracies instruction, the defendant
“can prevail only if he shows that the evidence presented could ‘reasonably be construed only as
supporting a finding of multiple conspiracies’ rather than the conspiracy charged.” United States
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v. Rugiero, 20 F.3d 1387, 1391 (6th Cir. 1994) (citation omitted); see also Sixth Circuit Pattern
Criminal Jury Instructions, Committee Commentary 3.08 (collecting cases for the proposition that
“[w]hen no evidence is presented warranting an instruction on multiple conspiracies, none need
be given”). Ashrafkhan cannot meet this burden because, at trial, he never argued that there were
multiple conspiracies but argued instead that he did not participate in any conspiracy. On appeal,
he provides no explanation for how a separate conspiracy existed or why the government’s theory
that VDA and Compassionate were part of the same conspiracy was incorrect. “[A] single
conspiracy is not converted into multiple conspiracies merely because there may be some changes
in persons involved or because they play different roles.” Rugiero, 20 F.3d at 1391. The district
court was thus not required to give a multiple-conspiracies instruction where only one conspiracy
is alleged and proven at trial. See United States v. Lash, 937 F.2d 1077, 1086 (6th Cir. 1991).
B. Alleged Prosecutorial Misconduct
Ashrafkhan next makes two arguments alleging prosecutorial misconduct both before and
during his trial. First, he argues that prosecutors impermissibly steered his case towards a district
judge of their choosing by manipulating the circumstances surrounding the indictment. Second,
he argues that the prosecutors knowingly elicited false testimony from witnesses at trial.
Ashrafkhan never raised either of these arguments before the district court, so we review for plain
error. See United States v. Henry, 545 F.3d 367, 376 (6th Cir. 2008).
1. Trial-Judge Selection
Ashrafkhan first contends that the prosecution manipulated the selection of the trial judge
so that his case would be assigned to Judge Cleland, an act of improper prosecutorial “steering.”
In support, he details the following series of events. In September 2011, the government brought
an indictment against ten defendants—which did not include Ashrafkhan—alleging a conspiracy
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to distribute OxyContin. After Judge Cleland was assigned to the case, the government brought a
first superseding indictment against one new defendant, Frederick Jackson. Ashrafkhan alleges
that this superseding indictment had “no connection between Jackson and the original defendants,”
from the September 2011 indictment. Moreover, by the time that Jackson was indicted, the ten
original defendants had all already pleaded guilty. Finally, on January 10, 2013, the government
brought a second superseding indictment against Ashrafkhan and forty-three co-defendants (one
of which was Jackson), even though Ashrafkhan claims that there was no connection between any
of the new defendants and Jackson, nor any connection between the new defendants and the ten
defendants from the original indictment. In short, Ashrafkhan claims that prosecutors charged
multiple individuals in several, unconnected indictments because they preferred Judge Cleland to
preside over the proceedings. Ashrafkhan claims that these actions violated the district court’s
case-assignment plan under the local rules of the Eastern District of Michigan, and that it deprived
him of due process. See E.D. Mich. LCrR 57.10(a).
First, it is important to note that the second superseding indictment, the indictment which
charged Ashrafkhan, did not violate any local rule of the Eastern District of Michigan. Although
the current version of Rule 57.10 states that “[s]uperseding indictments and informations shall not
be filed in closed cases or cases where the last defendant has pleaded guilty and is awaiting
sentencing,” that provision was not part of the rule when Ashrafkhan was charged in January of
2013. See E.D. Mich. LCrR 57.10(d)(3). The current version of the rule was
proposed for amendment in December of 2013, and only took effect in June of 2014. See Notice of
Proposed Amendment to Local Rules, https://www.mied.uscourts.gov/PDFFIles/DEC2013Propo
sedAmendments.pdf (last visited July 9, 2020). In any event, Ashrafkhan only discusses this local
rule in reference to the first superseding indictment, which charged Frederick Jackson after the ten
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defendants in the original September 2011 indictment had already pleaded guilty. Ashrafkhan
does not (nor could he) contend that the second superseding indictment charging him had the same
defect, because Jackson did not plead guilty before the second superseding indictment was filed.
And although Ashrafkhan claims that there was no connection between himself or Frederick
Jackson, trial testimony showed that Jackson was a marketer who had worked with Compassionate.
However, just because the government complied with the local rules does not necessarily
render its actions immune from due-process review. But contrary to Ashrafkhan’s insistence that
the government engaged in impermissible “judge shopping,” no court has ever held that
prosecutorial “judge shopping”—without more—is a per se violation of a defendant’s due-process
rights. See Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir. 2004) (holding that “no federal
court has held that prosecutorial judge shopping is a per se basis for habeas relief” and collecting
cases); United States v. Pearson, 203 F.3d 1243, 1266 (10th Cir. 2000) (noting “that a certain type
of judge-shopping inheres in our federalist system” and that the most important question was
simply whether the judge assigned was impartial); Tyson v. Trigg, 50 F.3d 436, 442 (7th Cir. 1995)
(holding that allowing a prosecutor to choose the trial judge, even if it “lack[s] the appearance of
impartiality” is not enough to grant a new trial).
We have also spoken on this issue, although briefly, in two cases. In Sinito v. United States,
750 F.2d 512 (6th Cir. 1984), the defendant claimed that he was entitled to a new trial because his
case had been “steered” to a particular judge. The judge was assigned according to the local rules
of the Northern District of Ohio at the time, which had a case-assignment plan that allowed a
“district court judge sitting in Akron [to] exchange a non-Akron case initially assigned to him for
an Akron case of the same category initially assigned to a judge sitting in Cleveland, thus
facilitating the hearing of Akron cases by a judge in Akron and non-Akron cases by a judge sitting
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in Cleveland.” Id. at 514 n.3. Sinito’s case had been randomly assigned to a Cleveland-based
judge, but pursuant to the case-assignment plan, it was reassigned to an Akron-based judge, Judge
Manos. Sinito argued that a clerical error in a previously filed case resulted in Judge Manos being
assigned rather than a different Akron judge.
We ultimately rejected Sinito’s claim, holding that “[e]ven when there is an error in the
process by which the trial judge is selected, or when the selection process is not operated in
compliance with local rules, the defendant is not denied due process as a result of the error unless
he can point to some resulting prejudice.” Id. at 515 (emphasis added). This is because the rules
“governing the assignment of cases are designed as internal housekeeping rules to promote the
efficient operation of the district courts; they are not meant to confer rights on litigants.” Ibid. As
such, a defendant alleging an improper judge assignment must claim that the assigned judge was
prejudicial. Sinito never claimed any prejudice by his trial judge, and so we affirmed his
conviction. Id. at 516. One year after Sinito, we evaluated another allegation of prosecutorial
judge steering in United v. Gallo, 763 F.2d 1504 (6th Cir. 1985). Gallo was a co-defendant of
Sinito’s, and he made the same argument on appeal. Our disposition of the issue was the same,
and we cited Sinito approvingly for the proposition that “a pattern of ‘steering’ significant criminal
cases to a judge of [the prosecution’s] choice” does not implicate any due process concerns unless
the defendant can raise a particular claim of impartiality to the specific trial judge assigned. Id. at
1532.
Similar to the defendants in Sinito and Gallo, Ashrafkhan never establishes—or even
alleges—that Judge Cleland behaved prejudicially in any way. He therefore cannot prevail on this
issue.
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2. Evidentiary Issues
Ashrafkhan also contends that his conviction should be overturned because the government
intentionally introduced two pieces of evidence and testimony that it knew were false: (1) a
“summary chart” of Compassionate patient files; and (2) the testimony of a former Compassionate
marketer, Tiffany Walker.
“The knowing use of false or perjured testimony constitutes a denial of due process if there
is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”
United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989). To reverse a conviction, the
defendant “must show (1) the statement was actually false; (2) the statement was material; and
(3) the prosecution knew it was false.” Ibid. Importantly, “mere inconsistencies in testimony by
government witnesses do not establish knowing use of false testimony,” and a defendant will not
prevail unless he can demonstrate that the testimony was “indisputably false.” Id. at 822, 823
(emphasis added); see also Monea v. United States, 914 F.3d 414, 421 (6th Cir. 2019) (noting that
defendants’ claims rarely succeed “because of the difficulty in proving that the Government’s
witness ‘testified in an indisputably false manner’” (citation omitted)).
At trial, the government introduced a summary chart of patient “visits” to Compassionate.
The chart showed the information of patients who had supposedly visited Compassionate, such as
the procedure performed and the date of the visit. However, the government argued that several
cooperating witnesses whose information were on the chart stated that they had never actually
been examined by licensed doctors or visited Compassionate on the dates listed. Witnesses
testified that the chart showed that numerous patient files had been improperly inserted into
Compassionate’s files and fraudulently billed to Medicare through a process called “back-billing,”
wherein Compassionate would insert a patient’s name into its billing system on a specific date, but
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would then “back-bill” that “visit” to an earlier date. Because of the way Medicare claims were
processed, the claims were not received until generally a week later, and witnesses stated that this
method was done to falsely increase the time between the alleged fraudulent visit and when
Medicare would actually be billed so that Compassionate could avoid detection. Ashrafkhan
claims that the chart and the accompanying testimony were misleading because a defense witness
testified that, in his view, the chart did not show any fraudulent billing. But this piece of testimony,
alone, does not establish that the chart was “indisputably false.” It merely represented a different
view of the evidence that the jury apparently did not accept. Ashrafkhan does not provide any
additional reason for why the chart was false and thus his claim is foreclosed on this issue.
Next, Ashrafkhan objects to the testimony of Tiffany Walker, a Compassionate marketer
who testified that several of her sign-in sheets from “patient parties” were signed in June, July,
and August of 2009 by Dr. Faraj Ghabag, a Compassionate doctor who had not actually seen the
patients. Ashrafkhan claims that Dr. Ghabag stopped working at Compassionate in April of 2009,
and that by the dates testified to at trial, he had begun working at VDA. Ashrafkhan suggests that
the government intentionally misled the jury in an attempt to conflate VDA’s activities with
Compassionate’s. However, similar to the summary-chart argument, this argument is
unpersuasive because Ashrafkhan cannot demonstrate that Walker’s testimony was “indisputably
false.” Ashrafkhan provides no evidence to clearly show that Dr. Ghabag did not work at
Compassionate during the summer of 2009. At trial, Walker testified that it was her
“understanding” that Dr. Ghabag—who was primarily working under Ali Malik—was still with
Compassionate at the time that he signed the forms. And although Ghabag could have transitioned
to working at VDA at the time, she did not know “exactly what time [Malik] moved all the way
over there” and so she could not be sure when Ghabag transitioned either. Ashrafkhan contends
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that the government knew that the testimony it elicited from Walker was misleading because
Ghabag gave an interview to the FBI years after the trial in which he apparently stated that he had
left Compassionate by June of 2009. However, Ashrafkhan offers no reason why an unsworn
interview that occurred years after the events testified to renders Walker’s testimony “indisputably
false.” We hold that there are no evidentiary issues that require us to vacate his conviction.
C. Constructive Amendment or Prejudicial Variance
Ashrafkhan next argues that the government constructively amended his indictment or, in
the alternative, that it caused a prejudicial variance. “A constructive amendment ‘results when the
terms of an indictment are in effect altered by the presentation of evidence and jury instructions
which modify essential elements of the offense charged such that there is a substantial likelihood
that the defendant may have been convicted of an offense other than the one charged in the
indictment.’” United States v. Kuehne, 547 F.3d 667, 683 (6th Cir. 2008) (citation omitted).
A constructive amendment is per se prejudicial because the defendant will have been convicted of
a crime with which he was never charged. In contrast, a variance “occurs when the charging terms
[of the indictment] are unchanged, but the evidence at trial proves facts materially different from
those alleged in the indictment.” Ibid. (alteration in original) (citation omitted). A reversal of a
conviction based on a variance “is warranted only where a defendant proves that (1) a variance
occurred and (2) that the variance affected a substantial right.” Ibid.
Ashrafkhan claims that the indictment that charged him alleged a large drug-distribution
conspiracy, involving multiple different clinics and defendants who participated at different times
and played different roles within the overall scheme. However, at trial, the government introduced
evidence to prove only a limited conspiracy that focused mainly on Compassionate. Ashrafkhan
argues that this was impermissible, creating a situation in which there was a gap between what was
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alleged in the indictment and what was proven at trial. Generally, whether there is a constructive
amendment or variance is an issue of law reviewed de novo, but as with most of his other claims,
because Ashrafkhan did not raise this argument below, we review it for plain error. Id. at 682.
A constructive amendment occurs only if the defendant is convicted of a crime other than
the one charged in the indictment. There is no constructive amendment where the evidence and
jury instructions simply provide an “alternative method” of proving the charged offense. United
States v. Suarez, 263 F.3d 468, 478 (6th Cir. 2001). We have thus held that there is no constructive
amendment where the indictment alleges two different methods of how the offense was committed
even if the evidence at trial proved only one of those two methods. See United States v. Budd, 496
F.3d 517, 526 (6th Cir. 2007). Here, an evaluation of the indictment demonstrates that Ashrafkhan
was not convicted of a crime with which he was never charged. Count One of the indictment
alleges that Ashrafkhan, along with several co-defendants, knowingly agreed to “intentionally and
unlawfully distribute and possess with intent to distribute controlled substances, including but not
limited to” OxyContin, Vicodin, Vicodin ES, Lortab, Xanax, and cough syrup with codeine. Count
Two states, in relevant part, that Ashrafkhan, along with co-defendants, conspired to “enrich
themselves by, among other things, (a) submitting false and fraudulent claims to Medicare . . . (b)
offering and paying kickbacks and bribes to Medicare and Medicaid beneficiaries . . . (c) soliciting
and receiving kickbacks and bribes . . . (d) concealing the submission of false and fraudulent claims
to Medicare . . . and (e) diverting proceeds of the fraud for the personal use . . . .” The two money-
laundering counts (Counts Nine and Ten of the indictment) similarly described general conduct—
that Ashrafkhan withdrew funds in two amounts, $80,353.23 and $150,000—in cashier’s checks.
The jury heard evidence that matched these allegations, including testimony from individuals that
discussed how Compassionate’s scheme resulted in the distribution of drugs like Oxycontin onto
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the street, and how Ashrafkhan and his associates would recruit individuals to bring in fake patients
to the clinic. Ashrafkhan makes no more than a conclusory assertion that the evidence at trial
differed from what was charged in the indictment. There was thus no constructive amendment.
There was also no variance. Ashrafkhan argues that the indictment charged only one single
conspiracy involving Compassionate, but that the evidence at trial showed the existence of
multiple conspiracies all centering on VDA instead of Compassionate. This argument is
unpersuasive. Although the indictment charged one conspiracy, it included VDA as part of that
conspiracy. And although some of the testimony at trial referenced VDA, that does not necessarily
mean that there were multiple conspiracies, because the conspiracy charged in the indictment
involved several different levels of conspirators, including clinics, doctors, pharmacists, and
marketers. A variance exists only when “an indictment alleges one conspiracy, but the evidence
can be construed as only supporting a finding of multiple conspiracies.” United States v. Lee, 991
F.2d 343, 349 (6th Cir. 1993) (emphasis added). Ashrafkhan makes no argument as to why the
evidence supports a finding of only multiple conspiracies. Indeed, the opposite is true, as the
evidence showed that several individuals worked at both Compassionate and VDA, and that there
were more than a few minor interactions between the two organizations. Thus, there was no
variance—let alone a prejudicial one—that would warrant a reversal of Ashrafkhan’s conviction.
D. Rule 29 Motion for Judgment of Acquittal
Following trial, Ashrafkhan filed a Rule 29 motion for a judgment of acquittal, arguing that
there was insufficient evidence to support his convictions. The district court denied the motion.
We review sufficiency-of-the-evidence claims de novo, United States v. Wright, 774 F.3d 1085,
1088 (6th Cir. 2014), and “the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential elements
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of the crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “In
deciding a motion for judgment of acquittal, neither the district court nor the court of appeals may
make independent determinations regarding the credibility of witnesses or the weight to be given
such evidence,” and “the Government must be given the benefit of all reasonable inferences drawn
from the evidence, including circumstantial evidence.” United States v. Davis, 981 F.2d 906, 908
(6th Cir. 1992).
The trial record establishes that the jury could have credited trial testimony to conclude
that Ashrafkhan knew of, and indeed supervised, much of the illegal activity at Compassionate.
The jury heard testimony that Ashrafkhan was the “godfather” of the entire drug-distribution
conspiracy, and that he “r[a]n everything.” Verdell Lovett, a Compassionate marketer, testified
he and Ashrafkhan directly discussed “money” and how much Ashrafkhan was going to pay him
“for getting these patients signed up” for Ashrafkhan’s home-healthcare services. Lovett also
testified that he and Ashrafkhan had a conversation where Ashrafkhan expressed reluctance at
paying Lovett for signing up more patients, because “he said that the patients, all of them are
getting OxyContin, so why should I pay you [Lovett] any additional money when you know you're
making money off the patients for OxyContins.” Lovett also testified that he believed there was
no way that Ashrafkhan did not know that he was selling Oxycontin on the street and that he was
profiting from such sales.
Another witness, Mahmoud Fardous, testified that he consistently paid Ashrafkhan
kickbacks for referring patients to Fardous’s pharmacy. He stated that he paid Ashrafkhan the
kickback—or, as Fardous called it, “a gift”—“based on [the] number of prescription[s] we had
filled from Dr. Khan’s practice.” Ashrafkhan would “call us every three weeks, ask for the gift.
And I [would] send my technician over to pay the cash.” Although Fardous never personally
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delivered the money to Ashrafkhan, he testified that “Dr. Khan was the person in charge of calling
the pharmacy and remind[ing] us about the gift. Since he never showed any dissatisfaction, I
assumed the money was there.” Yet another witness, Dr. Ravi Iyer, testified that Ashrafkhan told
him to write prescriptions for Oxycontin for patients who never visited the clinic and to sign blank
prescription pads to be later used at “patient parties.” Ashrafkhan also apparently “embraced” the
idea of altering the patient visit charts to make them appear more legitimate. Finally, when Iyer
told Ashrafkhan that he no longer wanted to participate in the “patient parties” because “we’re not
doing any real medicine out here,” Ashrafkhan apparently responded by directing Iyer to no longer
see patients but to simply sign off on fraudulent patient charts instead.
In sum, the jury could have credited any of these witnesses’ testimony to convict
Ashrafkhan, and the district court properly incorporated much of this testimony into its order
denying Ashrafkhan’s Rule 29 motion. Notably, on appeal, Ashrafkhan does not contest the
existence of a drug-distribution or healthcare-fraud conspiracy. He merely contests his knowledge
of the illegal activities. Given the evidence presented, and the highly deferential standard for a
sufficiency-of-the-evidence review, we affirm the district court’s denial of the motion for
acquittal.3
E. Sentencing
Finally, Ashrafkhan argues that even if he is not granted a retrial, he is still entitled to a
remand for resentencing based on three errors. First, he argues that the district court improperly
concluded that he had caused drug overdose deaths in Portsmouth, Ohio. Second, he argues that
the district court erred in improperly computing the amount of drugs attributable to him. Third,
3
Ashrafkhan also claims that we should reverse his convictions for money laundering because of insufficient evidence
but acknowledges that the money-laundering counts rely on the drug-distribution and healthcare-fraud counts as
predicate acts. Thus, since we hold that there was sufficient evidence to affirm the conviction on the fraud charges,
we also affirm Ashrafkhan’s money-laundering convictions.
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Case No. 17-1918, United States v. Ashrafkhan
he argues that the district court improperly computed the loss amount attributable to him. For the
reasons that follow, we reject these arguments and affirm Ashrafkhan’s sentence in full.
1. “Portsmouth, Ohio” Comment
During Ashrafkhan’s sentencing hearing, Judge Cleland—after making the necessary
sentencing computations—made the following comment:
Taking into account the seriousness of the offense conduct in which both the
defense and the Government have acknowledged is extraordinarily serious. It is
behavior that has led to addiction and multiple deaths from overdose in the
Portsmouth, Ohio area.
Ashrafkhan argues that this comment violated Federal Rule of Criminal Procedure 32(d), which
requires that any factor relevant to sentencing to be included in the Presentence Report. Fed. R.
Crim. P. 32(d)(1). Pursuant to United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004), Judge
Cleland, after pronouncing Ashrafkhan’s sentence, asked if there were any objections to the
sentence or the hearing that had not previously been raised. Ashrafkhan did not further object and
thus we review the comment for plain error. We find no error because the comment is ambiguous
as to whether it expresses Judge Cleland’s view of Ashrafkhan’s conduct or whether it references
the “offense conduct” of drug distribution more generally. For instance, the PSR detailed effects
of the opioid epidemic in Portsmouth, stating that many of the drugs obtained through
Ashrafkhan’s healthcare fraud were “illegally distributed for substantial profit on the street through
a network of individuals in Portsmouth, Ohio, and elsewhere.” Earlier in the hearing, Judge
Cleland also discussed Portsmouth in relation to “the effects on the community of the dispensation
of the pills, particularly the controlled substance opiate pills.” He explained that “[t]he presentence
report totals those up into the hundreds of thousands of OxyContin or Oxycodone pills and the
millions of the other pills as the Court knows from sentencings of other individuals that traveled
to Portsmouth, Ohio and impacted so negatively the folks there.” Thus, the comment about
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Portsmouth was based on reasonable assumptions—given the attention around Portsmouth’s
opioid epidemic and the conclusions of the PSR—that some of the drugs from the conspiracy may
have been distributed in that area. Given this backdrop, the comment did not amount to any sort
of prejudicial error.
2. Drug-Amount Calculation
Ashrafkhan next challenges the district court’s determination of the drug-quantity amount
attributable to his conduct. “A district court’s drug-quantity determination is a factual finding that
we review under the clearly erroneous standard.” See, e.g., United States v. Jeross, 521 F.3d 562,
570 (6th Cir. 2008). “If the exact amount of drugs is undetermined, ‘an estimate will suffice, but
. . . a preponderance of the evidence must support the estimate.’” Ibid. (quoting United States v.
Walton, 908 F.2d 1289, 1302 (6th Cir. 1990)).
The district court adopted the PSR’s determination that approximately 90% of the
prescriptions written by several Compassionate doctors were fraudulent and should be attributed
to Ashrafkhan. This resulted in Ashrafkhan being assigned responsibility for the illegal
distribution of hundreds of thousands of doses of controlled substances, and a four-level increase
to his offense level. Ashrafkhan objects on two grounds: (1) that the information used to determine
how many drugs were prescribed was inaccurate, and (2) that the 90% attribution rate is arbitrary
and not supported by evidence.
The government used data from the Michigan Automatic Prescription Service (MAPS)—
a database that lists the prescribing doctor and the dosage of each controlled-substance prescription
filled by Michigan pharmacies—to calculate the amount of drugs that had been prescribed by
Compassionate doctors. Ashrafkhan argues that the MAPS data is unreliable because it did not
have the most accurate dates of when each prescribing doctor was affiliated with Compassionate,
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and that some of the doctors that MAPS detailed as working for Compassionate may have already
left the clinic by the date listed. He also makes the conclusory assertion that some of the
prescriptions detailed in the database were forgeries. These allegations, without more, are
insufficient to establish that the MAPS data was unreliable. In two prior cases involving the
Compassionate conspiracy, we have affirmed the reliability of the MAPS data to support
sentencing determinations. See United States v. Pamatmat, 756 F. App’x 537, 550 (6th Cir. 2018);
United States v. Geralt, 682 F. App’x 394, 407 (6th Cir. 2017). The defendants in both cases
objected to the use of the MAPS data on the same basis as Ashrafkhan does now—that the data
was speculative and could have included possible forgeries—but we held that there was no
evidence to support these allegations, and Ashrafkhan offers us no reason to conclude that his
objection should be adjudicated any differently.
Ashrafkhan also insists that the conclusion that 90% of the prescriptions from
Compassionate were fraudulent is speculative and should be reconsidered. But we considered and
rejected this argument, too, in Pamatmat and Geralt. See Pamatmat, 756 F. App’x at 551; Geralt,
682 F. App’x at 407. More specifically, two key pieces of evidence presented at trial—and
considered by the district court in rejecting Ashrafkhan’s original objection—foreclose this
argument. First, one of Compassionate’s doctors, Dr. Iyer, testified that he estimated that only
about five percent of the clinic’s patients were legitimate. Based on this testimony, the PSR made
the conservative estimate—by doubling Iyer’s estimated amount—that ten percent of
Compassionate’s activities were legitimate, arriving at the 90% attribution rate for Ashrafkhan.
Second, trial testimony revealed that all of the government’s undercover patient visits to the clinic
were fraudulent. Similar to the defendants in Pamatmat and Geralt, Ashrafkhan offers no
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persuasive reason as to why the 90% estimate is erroneous. Thus, we affirm the drug-quantity
determination.
3. Loss-Amount Calculation
Ashrafkhan also argues that the district court erred in determining the fraud-loss amount
that was attributable to him. A district court’s fraud-loss calculation is reviewed for clear error,
while its methodology is reviewed de novo. See United States v. Meda, 812 F.3d 502, 519 (6th
Cir. 2015); United States v. Martinez, 588 F.3d 301, 326 (6th Cir. 2009). Similar to the drug-
quantity calculation, we “ask whether a preponderance of the evidence supports the district court’s
determination of loss” and we “affirm if the district court made a ‘reasonable estimate of actual or
intended loss within broad ranges.’” Pamatmat, 756 F. App’x at 551 (quoting United States v.
Howley, 707 F.3d 574, 583 (6th Cir. 2013)).
The PSR established that Ashrafkhan was responsible for a loss amount of $9,131,689.29.
This was totaled from: $6,557,862.88 that Compassionate received from Medicare, later reduced
to $5,902,076.59 based on a 10% reduction for potential legitimate claims, and $3,229,612.70 for
the total amount that Ashrafkhan’s home-healthcare services received from Medicare:
$1,062,925.46, $1,159,714.93, and $1,006,972.31 from Galaxy, Preferred, and Procare,
respectively. Because the fraud-loss amount was over $7,000,000, a three-level increase was
applied to Ashrafkhan’s offense level. Ashrafkhan objects to the $9,131,689.29 amount,
contending that the district court erred when it added Medicare payments made to his home-
healthcare services to the overall loss amount. He contends that the amount attributable to these
companies should have been reduced to account for potentially legitimate claims, similar to how
the loss amount attributable to Compassionate was reduced by 10%.
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Although it is difficult to conclude definitively that all of the Medicare billing from
Ashrafkhan’s home-healthcare companies were fraudulent, the district court needed only to
conclude that Ashrafkhan’s total loss amount was over $7 million to have arrived at the same
offense level. Because Ashrafkhan does not object to the loss-amount calculation attributable to
Compassionate—$5,902,076.59—the same offense level was justified if the district court could
conclude that a total of at least $1,097,923.41 could be attributed to Ashrafkhan from the fraud at
all three home-healthcare services, combined. Put simply, to have reached the same offense level,
the district court only needed to find that at least 34% of the approximately $3.2 million in
Medicare payments received by Ashrafkhan’s home-healthcare services were fraudulent.
There is ample evidence to establish this by a preponderance of the evidence. For example,
Verdell Lovett, a Compassionate marketer, testified that “the doctor visits [for the home-healthcare
services] weren’t even real” and that the patients “didn’t require therapy at all.” He further
explained that many of the patients who he signed up for the home treatments were not
“homebound”—as they needed to be for Medicare eligibility—and that in reality, “[n]one of them
needed therapy” but “were getting paid for” just for signing up. The discussions with Ashrafkhan
focused on “[h]ow much was he going to pay me for getting these patients signed up” and that the
“process” involved signing the patients up with Galaxy—one of Ashrafkhan’s home-healthcare
services. Other witnesses also corroborated this series of events, and one witness even stated that
it was “policy” that every patient who received pain medication from Compassionate would also
sign up for home physical therapy with one of Ashrafkhan’s home-healthcare services. Against
this backdrop, the district court did not err in determining Ashrafkhan’s loss amount.
***
For the foregoing reasons, we AFFIRM Ashrafkhan’s conviction and sentence.
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