United States v. Karlov , 448 F. App'x 109 ( 2011 )

10-1546-cr
United States v. Karlov
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 22nd day of November, two thousand eleven.
PRESENT: AMALYA L. KEARSE,
REENA RAGGI,
Circuit Judges,
LAWRENCE E. KAHN,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
v. No. 10-1546-cr
ALEXANDRE KARLOV,
Defendant-Appellant.
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FOR APPELLANT: Michele Hauser, Esq., New York, New York.
FOR APPELLEE: Paul M. Krieger, Lisa R. Zornberg, Katherine Polk
Failla, Assistant United States Attorneys, on behalf of
Preet Bharara, United States Attorney for the Southern
District of New York, New York, New York.
*
Judge Lawrence E. Kahn of the United States District Court for the Northern District
of New York, sitting by designation.
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Appeal from the United States District Court for the Southern District of New York
(William H. Pauley III, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on April 1, 2010, is AFFIRMED, and the matter is
remanded for clerical correction of the judgment.
Alexandre Karlov appeals from a conviction entered after a jury trial at which he was
found guilty of conspiracy to commit mail fraud, see 18 U.S.C. § 1349, and of making false
statements to federal agents, see id. § 1001. On appeal, Karlov challenges the sufficiency
of the evidence supporting his membership in the charged conspiracy. We assume the
parties’ familiarity with the facts and record of prior proceedings, which we reference only
as necessary to explain our decision to affirm.
Karlov does not dispute that the evidence at trial amply demonstrated the existence
of the charged conspiracy. The fraudulent scheme was created by two brothers, Joseph and
Eugene Sherman, who operated a medical clinic (the “Sherman Clinic”) in Brooklyn, New
York, treating individuals professing exaggerated injuries or injuries from staged accidents
in order to receive unwarranted payments from insurance companies. The Shermans paid
“runners” to recruit potential patients and to organize the staged accidents. The Sherman
Clinic would then bill insurance companies for unnecessary, extensive treatment regimens,
which included referrals to specialists associated with the Shermans. The Shermans
controlled a law office (the “Sherman law office”) purportedly run by “front” lawyers to
handle the filing of bodily injury claims.
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Karlov contends that the evidence was insufficient to show his membership in this
conspiracy because the evidence was “uncertain and episodic” and did not place him at the
“heart” of the conspiracy. The record is to the contrary.
Karlov bears a heavy burden in raising a sufficiency challenge to his conviction
because, although our standard of review as to sufficiency is de novo, we must view the trial
evidence in the light most favorable to the verdict, assuming that the jury resolved all
questions of witness credibility and competing inferences in favor of the prosecution. See
United States v. Abu-Jihaad, 630 F.3d 102, 134–35 (2d Cir. 2010), cert. denied, 131 S. Ct.
3062 (2011). Under this “exceedingly deferential” standard of review, United States v.
Hassan, 578 F.3d 108, 126 (2d Cir. 2008), Karlov can secure relief only by showing that no
rational trier of fact could have found the essential elements of the crimes beyond a
reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord United States
v. Abu-Jihaad, 630 F.3d at 135.
To sustain a conspiracy conviction, the government must “present some evidence from
which it can reasonably be inferred that the person charged with conspiracy knew of the
existence of the scheme alleged in the indictment and knowingly joined and participated in
it.” United States v. Rodriguez, 392 F.3d 539, 545 (2d Cir. 2004) (internal quotation marks
omitted). In this context, “deference to the jury’s findings is especially important . . . because
a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects
of a conspiracy can be laid bare in court with the precision of a surgeon’s scalpel.” United
States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008) (internal quotation marks omitted).
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Having reviewed the record, we conclude that a rational jury could have found that
Karlov knowingly joined and participated in the charged conspiracy. In his post-arrest
statement, Karlov admitted knowing that “patients” attending the Sherman Clinic were
largely participants in staged auto accidents. Despite this knowledge of fraud, Karlov
admitted performing various delivery services for the clinic, including transporting patients
and supplies, for which he was paid $400 to $450 per week. This was sufficient by itself to
find that Karlov joined the conspiracy. See United States v. Hawkins, 547 F.3d 66, 71 (2d
Cir. 2008) (noting that “government need not prove that the defendant knew the details of
the conspiratorial scheme or the identities of all of the conspirators” (internal quotation marks
and alterations omitted)).
In fact, other evidence indicated that Karlov played a more significant role than he
acknowledged. Alexander Burman, manager of the Sherman Clinic from 1997 to 2000,
testified that Karlov provided “protection” to the clinic, a service that included threats of
physical harm. Karlov specifically threatened Burman when the Shermans believed their
manager might have stolen $70,000 from the office. Similarly, Viktor Shapovalov, a runner
for the clinic, testified that Eugene Sherman introduced Karlov to him as “responsible for
resolving all problems associated with the clinic,” Trial Tr. at 1123, and that Karlov
threatened Shapovalov when he owed the Shermans $10,000 as part of the fraud scheme.
Alexander Galkovich, a lawyer for the scheme, testified that Karlov not only regularly
delivered medical narrative reports to Gene Medvedovsky, the head of the Sherman law
office, but also that Karlov and Medvedovsky would review the reports together. Galkovich
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also testified that Karlov would show police accident reports to Galkovich, asking if the
office would be interested in taking on the victims as clients.
Finally, Karlov’s knowing joinder and participation in the consiracy was established
by evidence that he and his then-girlfriend, Svetlana Tkachenko, filed fraudulent medical
claims through the Sherman Clinic in connection with a 1999 accident, for which insurance
companies ultimately paid out over $40,000.
From the totality of this evidence, a reasonable jury could certainly conclude that
Karlov knowingly joined and participated in the charged conspiracy. Accordingly, we reject
his sufficiency challenge as without merit.
Although Count 1 of the indictment charged Karlov with conspiracy to commit mail
fraud in violation of 18 U.S.C. § 1349, and there is no question that he was convicted on that
count, we note nostra sponte that the judgment inaccurately describes the first count of
conviction, stating that Karlov was convicted of mail fraud in violation of 18 U.S.C. § 1341.
We remand for entry of an amended judgment, accurately reflecting the counts of conviction.
For the foregoing reasons, the district court’s judgment of conviction is AFFIRMED,
and the matter is remanded for clerical correction of the judgment.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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