United States v. Amalya Cherniavsky ( 2018 )

FILED
NOT FOR PUBLICATION
JUL 24 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50060
Plaintiff-Appellee, D.C. No.
2:13-cr-00668-TJH-2
v.
AMALYA CHERNIAVSKY, AKA MEMORANDUM*
Amalya Surenovna Yegiyan,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Argued and Submitted July 10, 2018
Pasadena, California
Before: BERZON and N.R. SMITH, Circuit Judges, and CASTEL,** District
Judge.
Amalya Cherniavsky appeals her conviction for multiple counts of
healthcare fraud and conspiracy to commit healthcare fraud in violation of 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable P. Kevin Castel, United States District Judge for the
Southern District of New York, sitting by designation.
U.S.C. §§ 1347, 1349. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. Sufficiency of the Evidence. There was sufficient evidence to convict
Cherniavsky. Cherniavsky (1) owned JC Medical Supply and filled out and signed
the Medicare provider application; (2) was educated on the Medicare rules and
regulations; (3) managed the office and the document filing system (which
contained extensive missing paperwork and fraudulent documents); (4) handled
Medicare inspections; (5) responded to audit requests with fraudulent documents;
(6) signed a majority of the checks for JC Medical, including at least one of the
kickback checks; and (7) lied to Medicare investigators when asked whether her
husband owned a medical business, which he did when the question was initially
asked. Although there is rarely “direct proof of one’s specific wrongful intent,”
“willfulness may be inferred from circumstantial evidence of fraudulent intent.”
United States v. Dearing, 504 F.3d 897, 901 (9th Cir. 2007) (citation and quotation
marks omitted). Here, “viewing the evidence in the light most favorable to the
prosecution,” there was sufficient evidence such that “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).
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2. Jury Instructions. The district court did not commit plain error by failing
to instruct the jury that Medicare regulations do not require durable medical
equipment (DME) providers to evaluate whether the medical equipment was
necessary. Medicare’s lack of a requirement that DME providers must investigate
the medical necessity of a piece of equipment has no bearing on whether
Cherniavsky violated or conspired to violate 18 U.S.C. § 1347. Cherniavsky was
not charged with ordering medically unnecessary equipment, but, rather,
knowingly and willfully participating in a scheme to procure and fabricate the
documents necessary to defraud Medicare. As such, any defense by Cherniavsky
on this basis would not have been “viable.” Cf. United States v. Bear, 439 F.3d
565, 569-71 (9th Cir. 2006) (finding plain error where defense was “viable”).
3. Federal Rule of Appellate Procedure 28(i). Cherniavsky may not adopt the
arguments in her husband’s briefing. “Rule 28(i) does not apply to cases which are
not consolidated.” United States v. Carpenter, 95 F.3d 773, 774 n.1 (9th Cir.
1996). Here, counsel was fully aware the cases were no longer consolidated,
because Cherniavsky’s and her husband’s appeals were severed before counsel
filed Cherniavsky’s opening brief. Accordingly, Cherniavsky has waived her
evidentiary claims because she failed to make independent arguments regarding
those claims on appeal. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).
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4. Restitution. The district court did not plainly err in its restitution order.
Cherniavsky explicitly requested the restitution amount be $615,418, and the
district court imposed that amount. Affirmatively arguing for a specific restitution
amount is clear waiver. See United States v. Perez, 116 F.3d 840, 845 (9th Cir.
1997).
AFFIRMED.
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