United States v. Sargis Tadevosyan , 524 F. App'x 1 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4118
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SARGIS TADEVOSYAN,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:11-cr-00142-1)
Argued: February 1, 2013 Decided: May 2, 2013
Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: A. Courtenay Craig, CRAIG LAW OFFICE, Huntington, West
Virginia; Tony Mirvis, THE MIRVIS LAW FIRM, P.C., Brooklyn, New
York, for Appellant. Meredith George Thomas, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
ON BRIEF: R. Booth Goodwin II, United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Sargis Tadevosyan (“Appellant”) was convicted of
one count of conspiracy to commit healthcare fraud and wire
fraud under 18 U.S.C. § 1349 and one count of aiding and
abetting aggravated identity theft under 18 U.S.C. §§ 1028A and
2(a). The district court denied Appellant’s pretrial motion to
suppress photographs that were seized despite being outside the
scope of a search warrant. The district court also denied
Appellant’s motion for a minimal role reduction and sentenced
him to forty-eight months’ imprisonment as to count one and
twenty-four months’ imprisonment as to count two, to run
consecutively.
Appellant raises five issues on appeal. First, he
challenges the sufficiency of the evidence on the merits.
Second, he contends that the district court erred when
instructing the jury as to the “specific intent” element of the
conspiracy offense. Third, he argues that the district court
incorrectly denied his motion to suppress the seized
photographs. Fourth, he alleges that the district court erred
in not applying the minimal role offense level reduction at
sentencing. Finally, he claims that the government violated the
2
Brady 1 doctrine in failing to turn over evidence related to his
codefendant. Finding no error, we affirm.
I.
A.
In 2010, codefendants Igor Shevchuk and Arsen Bedzhanyan,
both Russian nationals, were living in New York City on student
visas. 2 They were approached by a man known as “Garik” and
offered $5,000 each to open bank accounts in the names of
individuals who had left the country. Shevchuk and Bedzhanyan
agreed, and Garik had false identification cards created with
their photographs.
In December of 2010, Bedzhanyan and Shevchuk traveled with
Garik to West Virginia. Bedzhanyan and Shevchuk used false
identification cards and business papers, supplied by Garik, to
open a number of bank accounts in and around Charleston, West
Virginia. At one bank--the United Bank in Dunbar, West
Virginia--Shevchuk used the name Klim Baykov, along with Klim
Baykov’s Social Security Number, to open an account for KB
1
Brady v. Maryland, 373 U.S. 83 (1963).
2
We recite the facts in the light most favorable to the
government, as the prevailing party at trial. See United States
v. Jefferson, 674 F.3d 332, 341 n.14 (4th Cir. 2012).
3
Support Group, Inc. 3 KB Support was one of six “false-front”
healthcare providers 4 in West Virginia linked to the bank
accounts opened by Bedzhanyan and Shevchuk. Each of the false-
front providers had an office in the Charleston area. Together,
these providers submitted more than $4 million in fraudulent
claims to Medicare over the course of the alleged conspiracy,
which were paid via wire transfers to the bank accounts.
In the spring of 2011, Garik told Bedzhanyan and Shevchuk
that they had to return to West Virginia to fix a problem with
the wire transfer capability of the United Bank account. Garik
informed Bedzhanyan that he would be unable to travel with them,
and instead Garik’s friend would transport them.
Garik’s friend turned out to be Appellant. He picked up
Bedzhanyan and Shevchuk sometime in the evening on May 5, or
early on May 6, 2011, for the drive from New York to West
Virginia. Appellant brought with him the United Bank card as
well as the false identification card that Bedzhanyan and
Shevchuk had previously used to open the United Bank account.
Bedzhanyan testified at trial that when they got into the car,
3
This act formed part of the basis for Appellant’s
conviction of aiding and abetting aggravated identity theft.
4
False-front providers are business entities created to
bill Medicare for healthcare services that are never actually
rendered.
4
Appellant “made sure we kn[e]w about what we’re going there for
and everything had been explained to us,” and knew that
Bedzhanyan and Shevchuk were going to the bank to sign
paperwork. J.A. 776.
As they drove through Maryland, a state trooper stopped
Appellant for speeding. Before the trooper approached the car,
Appellant handed Bedzhanyan the false identification card and
the bank card and told him to hide them by pushing them into the
gap between the window and the car door. Because Appellant
spoke limited English, he instructed Bedzhanyan to tell the
trooper that the men were traveling to West Virginia to buy a
car.
Once in Dunbar, Appellant had difficulty retrieving the
cards from the door frame. Eventually, using a set of tools
purchased from a car supply store, he was able to recover them.
While Appellant worked, his cell phone rang continuously; Garik
was attempting to reach Appellant because Bedzhanyan and
Shevchuk were late for their meeting at the bank. Garik then
called Shevchuk and told him to give Appellant the phone. As
Appellant spoke with Garik, Bedzhanyan and Shevchuk observed him
looking at a set of keys.
Appellant then drove Bedzhanyan and Shevchuk to the bank
and gave Bedzhanyan the cards and a cell phone, instructing the
pair to meet him at a nearby McDonald’s restaurant when they
5
were finished. After completing their business at the bank,
Bedzhanyan and Shevchuk walked to McDonald’s, where Appellant
picked them up and told them that he needed to make a few stops,
including a stop to pick up mail. Appellant first stopped at a
car dealership, where law enforcement agents, who had been
monitoring Appellant’s movements, arrested all three men.
Law enforcement agents obtained search warrants for seven
locations, including the six false-front offices in West
Virginia, and the car Appellant had been driving. The agents
had previously spotted a car owned by Ara Ohanyan at one of the
false fronts and had obtained a copy of Ohanyan’s driver’s
license photograph. The agents had also reviewed a surveillance
tape depicting an unnamed individual who rented one of the
false-front offices.
When they searched Appellant’s car, agents found nine
folders in the pocket behind the driver’s seat. The folders
contained photographs, including pictures of Appellant with
Ohanyan and the unnamed individual. In the driver’s side door,
agents found a set of keys labeled with the false front
addresses. When the agents searched the false fronts, they
found mail littering the floor and desks of the offices.
B.
After being charged in a two-count indictment, Appellant
moved to suppress the photographs recovered from the car. The
6
district court denied the motion as to all photographs depicting
Appellant with Ohanyan or the unnamed individual, concluding
that although the photographs were outside the scope of the
warrant, they were properly seized because they were in “plain
view.”
During the charge conference, Appellant objected to the
district court’s jury instruction regarding specific intent,
arguing that it “treats it all as a general conspiracy instead
of [a] conspiracy to commit a violation of the health care
statute or the wire fraud statute.” J.A. 619. The district
court overruled the objection. After deliberations, the jury
found Appellant guilty of both counts. Appellant filed written
motions for a judgment of acquittal and for a new trial, both of
which the district court denied.
Prior to sentencing, counsel for Appellant informed the
government that he had evidence suggesting that codefendant
Shevchuk 5 had an alternate identity under the name “Idlar
Adjuglov.” The government then reviewed its files and found (1)
Shevchuk’s visa application that included the e-mail address
adjigul@mail.ru, (2) an alternate spelling of “Adjuglov” listed
as Shevchuk’s mother’s maiden name on the same application, and
5
Shevchuk and Bedzhanyan testified against Appellant at
trial.
7
(3) summary translations of Shevchuk’s jailhouse phone calls in
which the translator noted that Shevchuk was called “Eldar.”
At sentencing, Appellant argued that this information
should have been provided to the defense under Brady. Appellant
informed the district court that he intended to move for a new
trial. The government responded that both a copy of the visa
application and the written translations of Shevchuk’s phone
calls had been provided to Appellant during pre-trial discovery.
The district court directed Appellant to file a motion for new
trial, J.A. 911, which Appellant did not do.
Appellant also asked the court to apply the § 3B1.2(a)
Sentencing Guidelines minimal role reduction, arguing that his
only involvement in the scheme was to drive two individuals to
West Virginia. The court denied Appellant’s request and
sentenced him to forty-eight months’ imprisonment as to count
one and twenty-four months’ imprisonment as to count two, to run
consecutively. This appeal followed.
II.
A.
We first consider whether the district court erred in
denying Appellant’s motion for judgment of acquittal, an issue
we review de novo. United States v. Alerre, 430 F.3d 681, 693
(4th Cir. 2005). When the motion is based upon a claim of
8
insufficient evidence, the jury’s verdict must be sustained “if
there is substantial evidence, taking the view most favorable to
the government, to support it.” United States v. Abu Ali, 528
F.3d 210, 244 (4th Cir. 2008) (internal quotations omitted). In
evaluating the sufficiency of the evidence, this court does not
reweigh evidence or reassess the factfinder’s determination of
witness credibility and can “reverse a conviction on
insufficiency grounds only when the prosecution’s failure is
clear.” United States v. Moye, 454 F.3d 390, 394 (4th Cir.
2006) (internal quotations omitted).
Regarding the conspiracy charge, Appellant argues that the
government failed to offer any witness to demonstrate that he
was aware that the objects of the conspiracy were healthcare and
wire fraud, and therefore failed to prove the requisite mens
rea. As to the charge for aiding and abetting aggravated
identity theft, Appellant contends that the government failed to
show that “Klim Baykov” was an actual person and that Appellant
knew that he was an actual person, both of which are required
for a conviction.
The government responds that there was substantial evidence
that Appellant agreed to be a part of the conspiracy and
understood the nature of the scheme, and also argues that it
presented sufficient evidence to demonstrate that Klim Baykov
was a real person. In response to Appellant’s contention that
9
it failed to present evidence to show that Appellant knew that
Klim Baykov was a real person, the government submits that
Appellant did not make this argument before the district court,
and therefore waived it on appeal.
To convict Appellant of conspiracy to commit healthcare or
wire fraud, the government had to prove that: (1) two or more
persons in some way or manner came to a mutual understanding to
try to accomplish a common and unlawful plan to commit
healthcare or wire fraud, and (2) Appellant willfully became a
member of that conspiracy. See United States v. Fleschner, 98
F.3d 155, 159 (4th Cir. 1996). Although Appellant argues that
the government proved only that he innocently drove his
codefendants to West Virginia, the record demonstrates that he
did much more.
To begin with, Appellant sought assurances from Bedzhanyan
and Shevchuk that they understood why they were traveling to
West Virginia, namely to facilitate same-day wire transfers out
of the United Bank account. Appellant also had with him the
false identification card and the bank card that Bedzhanyan and
Shevchuk had not seen since they were in Garik’s possession,
which the pair then used during their meeting with the bank.
When stopped by a Maryland state trooper, Appellant instructed
Bedzhanyan to hide the cards and to lie about the purpose of
their trip to West Virginia. Law enforcement officers found
10
keys to the false-front offices in the driver’s door of the car
Appellant was driving. Finally, Appellant stated that he needed
to pick up mail in West Virginia, and officers found mail
littering the false-front offices.
Appellant’s focus on the lack of direct evidence regarding
his knowledge ignores the ability of the jury to make inferences
from other evidence. Both direct and circumstantial evidence
may sustain a conviction, United States v. Harvey, 532 F.3d 326,
333 (4th Cir. 2008), and there was more than sufficient evidence
from which the jury could infer Appellant’s knowledge about the
objects of the conspiracy. Appellant’s connection to the
fraudulent healthcare providers could be inferred from his
possession of the false identification card, the bank card, and
the keys to the false fronts. Additionally, a jury could
reasonably infer that the mail Appellant intended to pick up
before being arrested was the same mail found at the false
fronts. Drawing all inferences in favor of the government, we
find that substantial evidence supported the jury’s verdict as
to count one.
We reach a similar conclusion as to the second count
alleging that Appellant aided and abetted aggravated identify
theft. Specifically, we are satisfied that the victim of the
offense, Klim Baykov, was an actual person. Bedzhanyan and
Shevchuk testified that Garik told them that they were opening
11
accounts under the names of real people who had left the
country. In addition, the United Bank account was successfully
opened using Klim Baykov’s Social Security Number. Finally, the
government presented a certificate from the Social Security
Administration indicating that the Social Security Number
associated with Klim Baykov on the bank account actually did
belong to a person named Klim Baykov. Together, these facts
constitute substantial evidence supporting the jury’s finding
that Klim Baykov was a real person. 6
B.
We next consider Appellant’s argument that the district
court erred in its instructions to the jury as to Appellant’s
specific intent to commit either healthcare fraud or wire fraud.
We review de novo a claim that the district court misstated the
law in a jury instruction. See United States v. Jefferson, 674
F.3d 332, 351 (4th Cir. 2012). “[W]e do not view a single
instruction in isolation; rather we consider whether, taken as a
whole and in the context of the entire charge, the instructions
6
Appellant also contends that the government failed to show
that he knew Klim Baykov was a real person. Having failed to
present that argument to the district court, we decline to
consider Appellant’s new theory on appeal. See United States v.
Chong Lam, 677 F.3d 190, 200 (4th Cir. 2012) (“When a defendant
raises specific grounds in a Rule 29 motion, grounds that are
not specifically raised are waived on appeal.”).
12
accurately and fairly state the controlling law.” United States
v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996).
Appellant argues that the instruction given by the court
was too general in that it only required the government to prove
that Appellant agreed to commit a criminal act, rather than one
of the specific types of fraud charged in the indictment. The
government responds that the Appellant focuses too narrowly on
the district court’s instruction regarding the definition of
“specific intent.” According to the government, if the court’s
instructions are read in their entirety, the court correctly
stated the government’s burden of proof.
The instruction to which Appellant objected reads:
To establish specific intent, the government must
prove beyond a reasonable doubt that the defendant
knowingly did an act which the law forbids, purposely
intending to violate the law. That is not to say that
the defendant must have known he was violating a
particular statute, but only that the defendant knew
he was acting wrongly and knew he was violating the
law in general when he acted.
J.A. 608. Earlier in the jury instructions, the court stated
that the government was required to prove beyond a reasonable
doubt that
two or more persons in some way or manner, positively
or tacitly, came to a mutual understanding to try to
accomplish a common unlawful plan, that is, to commit
health care fraud or to commit wire fraud, as charged
in count one; and . . . that [Appellant] willfully
became a member of that conspiracy.
13
J.A. 590. The district court recited these elements again later
in the instructions. J.A. 614-15. The court also instructed
the jury that “[t]o act willfully in a conspiracy means to act
voluntarily and intentionally, and with specific intent to do
something the law forbids.” J.A. 594.
We conclude that the jury instructions, read as a whole,
correctly state the law, including the government’s burden of
proof. The instruction to which Appellant objects defines
specific intent, and thus necessarily contains more general
language than the separate recitation of the elements of
conspiracy to commit wire and healthcare fraud. The district
court’s instructions as to the elements of the crime, by
contrast, are nearly identical to the language that Appellant
suggests is correct.
Appellant’s related assertion that the government must
prove that he knew he was violating a specific statute is based
on a case decided by a sister circuit analyzing a completely
different statute. See United States v. Brodie, 403 F.3d 123,
147 (3d Cir. 2005) (discussing the Trading with the Enemy Act,
which specifically requires that the government prove that the
defendant have some knowledge of the underlying law prohibiting
trade with Cuba, see 50 App. U.S.C. § 1 et seq.). No such
requirement exists for either of the crimes charged in the
14
conspiracy indictment. See 18 U.S.C. §§ 1349, 1028A, 2. In
sum, we find no error in the district court’s instructions.
C.
We next turn to Appellant’s assertion that the district
court erred in failing to suppress the photographs seized by law
enforcement officers from the car Appellant drove to West
Virginia. When considering a district court’s denial of a
motion to suppress, we review the court’s factual findings for
clear error and legal conclusions de novo. United States v.
Lewis, 606 F.3d 193, 197 (4th Cir. 2010). We construe the
evidence in the light most favorable to the government, as the
prevailing party at trial. Id.The district court declined to suppress some of the
photographs seized by the agents--specifically those showing
Appellant with Ohanyan and the unnamed individual who rented one
of the false-front offices--finding that they were in “plain
view.” Appellant contends that the photographs should not have
been seized because they were not incriminating, citing to an
officer’s testimony at trial that the photographs were not
“criminal.”
The plain view doctrine applies in “the situation in which
the police have a warrant to search a given area for specified
objects, and in the course of the search come across some other
article of incriminating character.” Coolidge v. New Hampshire,
15
403 U.S. 443, 465 (1971). Law enforcement may seize evidence in
plain view during a lawful search if “(1) the seizing officer is
lawfully present at the place from which the evidence can be
plainly viewed; (2) the seizing officer has a lawful right of
access to the object itself; and (3) the object’s incriminating
character is immediately apparent.” United States v. Williams,
592 F.3d 511, 521 (4th Cir. 2010) (internal quotations omitted).
“The incriminating nature of an object is immediately apparent
if, under the circumstances, the officer has probable cause to
believe that the item is linked to criminal activity.” Russell
v. Harms, 397 F.3d 458, 465 (7th Cir. 2005) (internal quotations
omitted).
We agree with the district court that the incriminating
character of the photographs was immediately apparent based on
the officers’ knowledge about the other individuals depicted in
them and their connections to the fraud scheme. Before
conducting the search, law enforcement agents reviewed
photographs of Ohanyan, whose car was spotted at one of the
false-front offices, and of an unnamed individual, who rented
one of the offices. The agents immediately identified these two
individuals in the photographs with Appellant. Because the
photographs showed Appellant associating with people connected
to the false-front providers, the district court correctly
determined that the photographs were incriminating, as they
16
tended to link Appellant with the crimes alleged in the
indictment. 7
It is true, as Appellant contends, that a law enforcement
agent testified that there was nothing “criminal” about the
photographs at issue. J.A. 204. But it is not clear to us what
the agent meant by his testimony, nor does it matter. Rather,
the relevant question is whether the photos were incriminating,
in the sense that the agents had probable cause to believe that
they were evidence of criminal activity. See Harms, 397 F.3d at
465. The photographs in question showed Appellant associating
with persons known to be linked to the fraud scheme, which is
sufficient to show their incriminating character.
D.
We next turn to Appellant’s argument that the court erred
in refusing to apply the minimal role reduction to his offense
level at sentencing. Under § 3B1.2 of the Sentencing
Guidelines, a district court must reduce the defendant’s offense
level if it finds that he played a minimal or minor role in the
offense. A defendant is entitled to a four-level adjustment if
his or her role was minimal, see U.S.S.G. § 3B1.2(a), and a two-
level adjustment if his or her role was minor but not minimal,
7
Because we hold that the photographs were properly seized,
we do not reach the government’s alternative argument that the
good faith exception to the warrant requirement should apply.
17
see id. § 3B1.2(b). The minimal participant reduction applies
when the defendant’s “lack of knowledge or understanding of the
scope and structure of the enterprise and of the activities of
others is indicative of a role as minimal participant.” Id. §
3B1.2 cmt. n. 4.
In determining whether the reduction is appropriate, the
“critical inquiry is . . . not just whether the defendant has
done fewer ‘bad acts’ than his co-defendants, but whether the
defendant’s conduct is material or essential to committing the
offense.” United States v. Pratt, 239 F.3d 640, 646 (4th Cir.
2001). A defendant seeking a downward adjustment for his or her
minimal role in the offense must prove that he or she is
entitled to it by a preponderance of the evidence. See United
States v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999). We
review the district court’s determination on this issue for
clear error. United States v. Daughtrey, 874 F.2d 213, 218 (4th
Cir. 1989).
Appellant contends that the totality of the circumstances,
including his lack of involvement prior to driving Bedzhanyan
and Shevchuk to West Virginia, the fact that he did not discuss
the plan with them during the drive, and the fact that Appellant
did not himself set up any bank accounts, indicates that he was
the least culpable of those involved in the scheme.
18
We have already summarized the facts of record supporting
Appellant’s convictions. Those same facts we think show clearly
that Appellant’s participation was both material and essential
to committing the offenses. We therefore affirm the district
court’s decision not to apply the minimal role reduction at
sentencing.
E.
Finally, we consider Appellant’s contention that the
government’s failure to provide certain evidence to the defense
violated the Brady doctrine. According to Appellant, after
being alerted to Shevchuk’s possible alternate identity prior to
sentencing, the government admitted to finding evidence
suggesting that Shevchuk had called himself “Ildar Adjuglov.”
Appellant argues that an alternate identity is valuable
impeachment evidence, and that the government therefore violated
its responsibility under Brady by not turning it over in advance
of trial.
With few exceptions, the jurisdiction of circuit courts is
limited to reviewing appeals from all final decisions of
district courts. 28 U.S.C. § 1291. Appellant contends that
this requirement is satisfied here because the district court
“effectively denied” his oral motion for a new trial.
Appellant’s Reply Br. at 1.
19
We disagree. The record shows that the court instructed
Appellant to file a motion for new trial; nothing resembling a
denial of an oral motion occurred. J.A. 911. Appellant,
however, never filed a motion, which in turn means that the
district court never considered the claim. Accordingly, we lack
jurisdiction to review the issue.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
20