United States v. Sharetta Wallace , 680 F. App'x 519 ( 2017 )

FILED
NOT FOR PUBLICATION
FEB 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50534
Plaintiff-Appellee, D.C. No.
2:13-cr-00264-SJO-3
v.
SHARETTA MICHELLE WALLACE, MEMORANDUM*
AKA Michele Wallace,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-50535
Plaintiff-Appellee, D.C. No.
2:13-cr-00264-SJO-5
v.
EMILIA E. ZVEREV, AKA Mila Zverev,
AKA Emilia Zvereva,
Defendant-Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
UNITED STATES OF AMERICA, No. 15-50549
Plaintiff-Appellee, D.C. No.
2:13-cr-00264-SJO-1
v.
STEVEN PROSHAK, AKA Yaroslav
Proshak,
Defendant-Appellant.
Appeals from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted February 10, 2017
Pasadena, California
Before: TASHIMA, GRABER, and CHRISTEN, Circuit Judges.
Defendants Sharetta Wallace, Emilia “Mila” Zverev, and Yaroslav “Steven”
Proshak appeal from their convictions and sentences for one count of conspiracy to
commit healthcare fraud, in violation of 18 U.S.C. § 1349, and five counts of
healthcare fraud, in violation of 18 U.S.C. § 1347. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
1. We review defendants’ sufficiency of the evidence claim to determine
“whether, ‘after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
2
crime beyond a reasonable doubt.’” United States v. Rios, 449 F.3d 1009, 1011
(9th Cir. 2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The
government introduced ample evidence that the subject ambulance company,
ProMed Medical Transportation, Inc., transported Medicare beneficiaries for
whom ambulance transport was not medically necessary. The government also
introduced testimony from several witnesses that defendants instructed ProMed
employees to falsify ambulance “run sheets.” This evidence was sufficient for
reasonable jurors to find defendants guilty of conspiracy to commit healthcare
fraud and substantive healthcare fraud. See United States v. Rutgard, 116 F.3d
1270, 1280–81 (9th Cir. 1997) (describing sufficiency of the evidence standards
for healthcare fraud).
2. Defendants argue that the district court erred by excluding evidence
concerning the “special rule” in Medicare ambulance regulations, 42 C.F.R.
§ 410.40(d)(2), and declining to issue a jury instruction about the rule. See United
States v. McGeshick, 41 F.3d 419, 421 (9th Cir. 1994) (“Failure to instruct the jury
on an appropriate defense theory is a question of law reviewed de novo.”).
The district court prevented defendants from misstating the law concerning
Medicare regulations, but the district court allowed defendants to present evidence
that they relied on the special rule and physician statements of medical necessity in
3
support of their argument that they lacked the requisite mental state to commit
fraud. The court’s order did not prevent defendants from reading the text of the
rule to the jury during testimony. Additionally, the district court accurately
instructed the jury on one of the theories behind defendants’ special rule argument:
that if defendants had a good faith belief that a physician certification was
sufficient to establish medical necessity and allowed the ambulance transports in
question, they lacked the intent to defraud the government. The district court did
not improperly deny defendants the opportunity to present a full defense or err in
its instructions to the jury.
3. Defendants challenge numerous evidentiary rulings. “A district
court’s evidentiary rulings should not be reversed absent clear abuse of discretion
and some prejudice.” Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 462
(9th Cir. 2014) (en banc) (citation omitted). Having reviewed each of defendants’
evidentiary challenges, we find no error. The district court’s rulings did not
constitute an abuse of discretion, nor did defendants show prejudice.
4. Defendants argue that the government engaged in misconduct by:
1) interfering with Dr. Firooz Pak’s choice to testify; 2) making improper
statements in the presence of the jury about a witness working a “graveyard shift”;
and 3) making improper statements in the presence of the jury that led jurors to ask
4
to rehear excerpts of defendants’ interviews with government agents. We review
de novo the district court’s refusal to dismiss an indictment for prosecutorial
misconduct. United States v. Spillone, 879 F.2d 514, 520 (9th Cir. 1989).
Defendants’ first allegation of misconduct is most serious. The
government’s actions regarding Dr. Pak deeply concerned the district court, and we
assume without deciding that the government engaged in misconduct by
substantially interfering with Dr. Pak’s choice to testify. Nevertheless, the district
court presented defendants with the option of ordering the government to give Dr.
Pak immunity, and they did not call him to testify. Any misconduct by the
government did not prejudice defendants. The evidence of defendants’ guilt was
overwhelming. Cf. United States v. Vavages, 151 F.3d 1185, 1189–93 (9th Cir.
1998).
5. Finding no error, defendants’ cumulative error argument fails. See
United States v. Wilkes, 662 F.3d 524, 543 (9th Cir. 2011).
6. Defendants also argue that the district court erred in its loss and
restitution calculations. “We review estimates of loss for clear error.” United
States v. King, 257 F.3d 1013, 1025 (9th Cir. 2001). “The legality of an order of
restitution is reviewed de novo, and factual findings supporting the order are
5
reviewed for clear error.” United States v. Luis, 765 F.3d 1061, 1065 (9th Cir.
2014) (quoting United States v. Brock-Davis, 504 F.3d 991, 996 (9th Cir. 2007)).
In arriving at the loss and restitution calculation, the district court used the
lowest number offered by the government, which included only the amounts that
Medicare paid defendants for fraudulent dialysis transports, rather than the larger
amounts billed to Medicare. The district court relied on a government agent’s
declaration concerning thirteen Medicare beneficiaries transported by ProMed,
instead of on estimates concerning the percentage of transports that were
fraudulent. The district court did not clearly err in arriving at its calculation. See
United States v. Zolp, 479 F.3d 715, 718–19 (9th Cir. 2007).
7. Proshak argues that his sentence of 108 months was substantively
unreasonable. “The abuse of discretion standard applies to all sentencing
decisions, whether the sentence is inside the Guidelines range or outside of it.”
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The district
court relied on 18 U.S.C. § 3553 factors to sentence Proshak above the advisory
Guidelines range. The district court considered Proshak’s individual
characteristics, including his apparent lack of remorse and the way in which he
took advantage of employees during an economic downturn to compel them to
6
commit fraud. The district court also considered the flagrant and protracted nature
of the offense. The sentence of 108 months was substantively reasonable.
AFFIRMED.
7