United States v. Jafari ( 2016 )

15-556-cr
United States v. Jafari
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 22nd day of September, two thousand sixteen.
PRESENT: REENA RAGGI,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 15-556-cr
NINA JAFARI, AKA Fatemeh Jafari,
Defendant-Appellant.
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APPEARING FOR APPELLANT: JAMES C. KNOX, E. Stewart Jones Hacker
Murphy, LLP, Troy, New York.
APPEARING FOR APPELLEE: MICHAEL DIGIACOMO, Assistant United
States Attorney (Richard D. Kaufman,
Assistant United States Attorney, on the brief),
for William J. Hochul, Jr., United States
Attorney for the Western District of
New York, Buffalo, New York.
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Appeal from a judgment and order of the United States District Court for the
Western District of New York (Elizabeth A. Wolford, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on May 15, 2015, and the forfeiture order
entered on February 24, 2015, are AFFIRMED.
After a jury trial in 2014, defendant Nina Jafari was convicted of four counts of
health-care fraud. See 18 U.S.C. § 1347. On appeal, Jafari challenges the
(1) sufficiency of the evidence supporting her convictions, (2) introduction of certain
evidence, (3) effectiveness of counsel, (4) procedural and substantive reasonableness of
her 30-month prison sentence, (5) $125,000 forfeiture order, and (6) $135,742.18
restitution order. 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.
1. Sufficiency Challenge
We review a sufficiency challenge de novo and must affirm the conviction if,
“viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); accord United
States v. Binday, 804 F.3d 558, 572 (2d Cir. 2015). In conducting such review, we are
mindful that “[d]irect evidence is not required” and that “the government is entitled to
prove its case solely through circumstantial evidence, provided, of course, that the
government still demonstrates each element of the charged offense beyond a reasonable
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doubt.” United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008) (internal quotation
marks omitted).
Jafari argues that the government failed to carry its burden to show that she
executed a fraudulent health-care scheme with the requisite mens rea. The argument
fails because a jury could reasonably conclude from Jafari’s recorded statements that she
knowingly intended to defraud Blue Cross Blue Shield of Western New York (“BCBS”).
In these statements, Jafari (1) encouraged a patient not to talk to the insurer, (2) told the
patient to withhold from the insurer a calendar reflecting the dates of the patient’s
appointments with Jafari, (3) offered to provide the patient with information to report to
the insurer, and (4) instructed the patient to claim on an insurance survey that all of the
patient’s sessions with Jafari were 75 to 80 minutes in length. See Gov’t App’x 513–52.
Further proof of culpable knowledge and intent was provided by five of Jafari’s
patients, who (5) testified that Jafari’s billing records—ultimately submitted to the
insurer—did not reflect the services they received. Moreover, (6) two patients testified
that their signatures had been forged on BCBS claim forms. See id. at 238, 240, 242,
326–27, 329. Fraudulent intent was corroborated by evidence that Jafari (7) failed
promptly to respond to BCBS’s request for patient files, see Trial Tr. 235; (8) billed
BCBS for unlikely patient sessions on Easter Sunday and Christmas, see id. at 212; and
(9) twice billed BCBS for 20 hours of patient sessions on a single day, see id. at 213.
From the totality of this evidence, a reasonable jury could certainly have concluded that
Jafari knowingly and intentionally defrauded BCBS.
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2. Amendment of Indictment
a. Uncharged Billings
Jafari asserts that evidence of billings not charged in the indictment constructively
amended the indictment. A defendant claiming constructive amendment must
demonstrate that evidence and jury instructions so modified essential elements of the
charged offense “that there is a substantial likelihood that the defendant may have been
convicted of an offense other than that charged in the indictment.” United States v.
D’Amelio, 683 F.3d 412, 416 (2d Cir. 2012) (internal quotation marks omitted). That is
not this case.
The indictment charged Jafari with five counts of health-care fraud under 18
U.S.C. § 1347, each linked to particular billings. The challenged billings, although not
charged in the indictment, were part of the same fraudulent scheme and fell within the
“core of criminality” of which Jafari had notice. Id. at 417 (internal quotation marks
omitted); see United States v. Dupre, 462 F.3d 131, 140–41 (2d Cir. 2006) (concluding
that prosecution did not constructively amend indictment where “evidence at trial
concerned the same elaborate scheme to defraud investors as was described in the
indictment”). Thus, as the district court reasonably determined, such evidence was
properly admitted to provide jurors with a complete account of the fraud scheme and to
demonstrate Jafari’s culpable intent. See Fed. R. Evid. 403, 404(b); United States v.
Carboni, 204 F.3d 39, 44 (2d Cir. 2000). The district court carefully charged the jury
that to find Jafari guilty of any of the counts alleged in the indictment, it had to be
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persuaded unanimously and beyond a reasonable doubt that she perpetrated the charged
fraud by means of the particular billing alleged in each count. This ensured that
uncharged billing did not constructively amend the indictment.
Indeed, the court’s instruction also ensured that the billings evidence did not
mislead the jury as to the charged crimes so as to cause a prejudicial variance. See
United States v. Salmonese, 352 F.3d 608, 621–22 (2d Cir. 2003).
b. Outstanding Judgments
Jafari also identifies variance in the government’s mention during its opening
statement of two outstanding judgments against her. The argument fails because no
evidence concerning those judgments was admitted at trial and the district court
instructed the jury that opening remarks are not sources of evidence. See Trial Tr. 25;
United States v. D’Amelio, 683 F.3d at 417 (explaining that “variance occurs when the
charging terms of the indictment are left unaltered, but the evidence at trial proves facts
materially different from those alleged in the indictment” (emphasis added) (internal
quotation marks omitted)).1
3. Ineffective Assistance of Counsel
a. Advice as to Right to Testify
Jafari faults trial counsel for failing to advise her of her right to testify. While the
preferred means for addressing ineffective assistance claims is a motion pursuant to 28
1
Nor did the government violate the district court’s pretrial order by referencing the
outstanding judgments in its opening statement. Indeed, the district court expressly
overruled Jafari’s objection to the government’s remark.
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U.S.C. § 2255, see Massaro v. United States, 538 U.S. 500, 504 (2003), we can review
such a claim on direct appeal where, as here, no record development is necessary to
resolve the challenge, see United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004).
Here, it is “beyond any doubt” that this ineffectiveness claim is meritless because the
record indicates that Jafari’s counsel did, in fact, advise her of her right to testify.
United States v. Gaskin, 364 F.3d at 468 (internal quotation marks omitted). Indeed,
trial counsel represented to the district court that he spoke to Jafari “several times about
her own testimony.” Trial Tr. 438 (emphasis added). Appellate counsel submits that
these conversations were not conclusive because trial counsel then stated, “And we had
discussed about potential witnesses, and I wanted to go over with my client her right to
testify.” Id. (emphasis added). The urged inference is belied by the record, which
indicates that counsel had in fact completed the necessary discussion and received his
client’s decision: “She has indicated to me that she will not be testifying, therefore, the
defense would be resting.” Id. at 438–39.
Further, the district court itself advised Jafari,
[T]here are a lot of decisions made throughout the course of
the trial that are left to your attorney. But the decision . . .
whether or not to testify is one that is solely and exclusively
within the power of the defendant to make. And, so,
therefore, your attorney has indicated that you intend not to
testify. Is that in fact your decision . . . ?
Id. at 439. Jafari not only confirmed that she had decided not to testify, but also told the
district court that she had had “sufficient time to confer” with her lawyer about the
decision. Id. Accordingly, Jafari cannot satisfy either the objectively unreasonable
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representation or ensuing prejudice requirements of Strickland v. Washington, 466 U.S.
668 (1984).
b. Failure to Raise Meaningful Defense
Jafari also faults counsel for failing to raise a meaningful defense. The record
strongly indicates that counsel’s decisions regarding cross-examination and the pursuit of
certain defenses could “be considered sound trial strategy” falling “within the wide range
of reasonable professional assistance.” Id. at 689 (internal quotation marks omitted).
Further, given the weight of the evidence supporting Jafari’s conviction, it would appear
difficult for Jafari to show that she was prejudiced by counsel’s defense decisions. See
id. at 692–94 (explaining that prejudice requires showing of “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different”). Nevertheless, because this challenge may depend on further record
development, we do not conclusively resolve the question now, but, rather, dismiss it,
leaving Jafari to decide if she wishes to pursue it on a § 2255 motion. See United States
v. Doe, 365 F.3d 150, 154 (2d Cir. 2004).
4. Sentencing Challenges
We review a challenged sentence for “‘reasonableness,’ ‘a particularly deferential
form of abuse-of-discretion review’ that we apply both to the procedures used to arrive at
the sentence (procedural reasonableness) and to the length of the sentence (substantive
reasonableness).” United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012)
(quoting United States v. Cavera, 550 F.3d 180, 188 & n.5 (2d Cir. 2008) (en banc)).
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a. Procedural Reasonableness
Jafari maintains that her sentence is procedurally unreasonably because the district
court failed “fairly and fully [to] consider all of the factors listed in 18 U.S.C. § 3553(a).”
Appellant’s Br. 37; see United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013). We
identify no such error, let alone plain error. See United States v. Zillgitt, 286 F.3d 128,
131 (2d Cir. 2002). The record reflects the district court’s meticulous examination of
each of the § 3553(a) factors. See Sentencing Tr. 45–48; United States v. Cassesse, 685
F.3d 186, 192 (2d Cir. 2012) (explaining that appellate court will “accept” that requisite
§ 3553(a) consideration occurred “[a]s long as the judge is aware of both the statutory
requirements and the sentencing range or ranges that are arguably applicable” and
“nothing in the record indicates misunderstanding about such materials or misperception
about their relevance” (internal quotation marks omitted)).
Jafari nevertheless argues that the district court’s failure properly to consider her
personal history and characteristics, see 18 U.S.C. § 3553(a)(1), is evident from its
statement that “there should not be a disparity in sentencing based on someone’s social or
economic background,” Sentencing Tr. 47. When the statement is read in context,
however, it is clear that the district court was not dismissing the history and
characteristics of the defendant out of hand, but only acknowledging that a defendant’s
socioeconomic status is generally “not relevant in the determination of a sentence.”
U.S.S.G. § 5H1.10.
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Jafari’s claim that the district court placed undue emphasis on the need for
deterrence also fails because “[t]he weight to be afforded any . . . § 3553(a) factor[] is a
matter firmly committed to the discretion of the sentencing judge and is beyond our
review, as long as the sentence ultimately imposed is reasonable.” United States v.
Fernandez, 443 F.3d 19, 32 (2d Cir. 2006). For reasons explained in the succeeding
subsection, the sentence here imposed was substantively reasonable.
b. Substantive Reasonableness
In arguing that her sentence is substantively unreasonable, Jafari bears a heavy
burden because we will set aside a sentence on that ground “only in exceptional cases
where the [district] court’s decision cannot be located within the range of permissible
decisions.” United States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted);
see United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (explaining that substantive
reasonableness review “provide[s] a backstop for those few cases that, although
procedurally correct, would nonetheless damage the administration of justice because the
sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a
matter of law”). That is not this case.2
Jafari was sentenced to 30 months’ imprisonment, within the Guideline range
applicable to her case. While we do not presume that a within-Guidelines sentence is
2
Although Jafari did not raise her substantive challenge in the district court, we have not
yet decided whether plain error review applies to such an unpreserved challenge. See
United States v. Thavaraja, 740 F.3d 253, 258 n.4 (2d Cir. 2014). We need not here
decide that question because, regardless of the standard of review, Jafari’s challenge fails
on the merits.
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substantively reasonable, “in the overwhelming majority of cases, a Guidelines sentence
will fall comfortably within the broad range of sentences that would be reasonable in the
particular circumstances.” United States v. Fernandez, 443 F.3d at 27. Nothing in the
record of this case warrants a different conclusion. After considering the mitigating
circumstances raised by Jafari, the district court nonetheless concluded that a 30-month
imprisonment sentence was sufficient but not greater than necessary because, in
committing this fraud, Jafari “took advantage of [her] patients,” “engaged in a number of
efforts to st[ymie] [the insurer’s] investigation,” and “attempt[ed] to influence [a patient]
. . . to lie to the investigators.” Sentencing Tr. 47. Under these circumstances, we
cannot conclude that Jafari’s sentence was substantively unreasonable. See United
States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008) (recognizing broad range of sentences
that can be considered substantively reasonable).
5. Forfeiture Order
Jafari faults the district court for imposing forfeiture based on uncharged and
acquitted conduct. Where, as here, a defendant objected to a forfeiture order in the
district court, we review the district court’s finding of facts for clear error and its legal
conclusions de novo. See United States v. Sabhnani, 599 F.3d 215, 261 (2d Cir. 2010).
In United States v. Capoccia, this court held that “where the government has
alleged discrete violations of a statute that does not criminalize a scheme, conspiracy, or
enterprise, the government is not entitled to forfeiture of proceeds from uncharged
violations regardless of whether they and the charged violations are part of a common
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scheme.” 503 F.3d 103, 110 (2d Cir. 2007). In so holding, Capoccia specifically
distinguished the statute there at issue, 18 U.S.C. § 2314, from 18 U.S.C. § 1347,
acknowledging that § 1347 criminalizes a scheme and, accordingly, the government may
be entitled to unlawful proceeds derived from “additional executions of [a § 1347]
scheme not specifically charged as substantive counts, but which fall within the
boundaries of the overall scheme.” Id. at 117 (internal quotation marks omitted).
Similarly, in United States v. Fruchter, 411 F.3d 377, 384 (2d Cir. 2005), this court
recognized that proceeds stemming from acquitted conduct can be forfeitable if the
government meets the preponderance standard. This precedent defeats Jafari’s
challenge to an order requiring her to forfeit the unlawful proceeds of uncharged and
acquitted conduct found by a preponderance to have been committed in furtherance of the
proved health-care scheme.
To the extent Jafari argues that the $125,000 forfeiture amount is speculative, the
argument fails because we have recognized that “[t]he calculation of forfeiture amounts is
not an exact science,” and requires estimation. United States v. Treacy, 639 F.3d 32, 48
(2d Cir. 2011). Thus, in assessing forfeiture, courts “need only make a reasonable
estimate of the loss, given the available information,” and are “permitted to use general
points of reference as a starting point for calculating the losses or gains from fraudulent
transactions and may make reasonable extrapolations from the evidence established by a
preponderance of the evidence at the sentencing proceeding.” Id. (internal quotation
marks omitted).
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Here, the record reflects that the district court examined three different
extrapolation methodologies and concluded that all three supported a forfeiture judgment
of at least $125,000. See United States v. Jafari, 85 F. Supp. 3d 679, 695 (W.D.N.Y.
2015) (explaining that “if approximately half of Defendant’s patient base was comprised
of families, and most of the charges for those families were submitted using [individual
session code] 90808, then at least half of the payments to Defendant for [session] code
90808 would be fraudulent”).3 Because this sum was a reasonable estimate of Jafari’s
unlawful gains, we identify no clear error in the amount of the forfeiture order.
6. Restitution Order
Jafari also challenges the $135,742.18 order of restitution as speculative. We
review an order of restitution for abuse of discretion, and identify none. See United
States v. Gushlak, 728 F.3d 184, 190 (2d Cir. 2013) (stating standard of review). As
with forfeiture, a restitution calculation is not required to be “mathematically precise,” id.
at 195 (internal quotation marks omitted); it need only be a “reasonable approximation
. . . supported by a sound methodology,” id. at 196. Given Jafari’s failure accurately to
keep records, the district court’s restitution calculation was both reasonable and
conservative. See United States v. Jafari, 104 F. Supp. 3d 317, 326–27 (W.D.N.Y.
2015) (“[I]n calculating the . . . restitution figure, Defendant was provided with the
benefit of the doubt and it was assumed that she provided services on the dates indicated
3
The reasonableness of this forfeiture figure is underscored by Jafari’s representation to
the district court that “an appropriate loss amount for sentencing purposes is in the range
of $120,000 to $200,000.” United States v. Jafari, 85 F. Supp. 3d at 692.
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by her billings when, in fact, the evidence plainly demonstrated that this was not always
the case.”). Thus, we discern no error—much less clear error—in the district court’s
restitution calculation. Accordingly, Jafari’s challenge to the restitution amount fails.
7. Conclusion
We have considered Jafari’s remaining arguments and conclude that they are
without merit. We, therefore, AFFIRM the judgment and order of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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