United States v. Aleksandr Suris ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50058
Plaintiff-Appellee, D.C. No.
2:17-cr-00420-SJO-1
v.
ALEKSANDR SURIS, AKA Aleks, AKA MEMORANDUM*
Alex, AKA Sasha, AKA Aleksandr
Yefimovich Suris,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 20-50059
Plaintiff-Appellee,
D.C. No.
v. 2:17-cr-00420-SJO-2
MAXIM SVERDLOV, AKA Maksim
Sverdlov,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted February 11, 2021**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Pasadena, California
Before: O’SCANNLAIN, CALLAHAN, and OWENS, Circuit Judges.
Defendants Aleksandr Suris and Maxim Sverdlov appeal from their
convictions, 144-month sentences, and an $11.8 million restitution order for
conspiracy to commit health care fraud against Medicare and conspiracy to commit
money laundering. Suris also appeals from his convictions for conspiracy to
commit health care fraud and six counts of health care fraud involving Cigna. As
the parties are familiar with the facts, we do not recount them here. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
1. The Defendants argue that their convictions should be reversed because
they were based on the “inherently untrustworthy” and “implausible” testimonies
of two co-conspirators who had struck plea deals with the government. We review
challenges to the sufficiency of the evidence de novo, “and must determine
whether, 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.” United States v. Liew, 856 F.3d 585, 596 (9th Cir. 2017)
(internal quotation marks omitted). Here, the jury was fully aware of the plea deals
and had even been instructed to consider the extent to which the co-conspirators’
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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testimonies “may have been influenced by” the pleas. Because this court is
“powerless to question a jury’s assessment of witnesses’ credibility,” United States
v. Johnson, 229 F.3d 891, 894 (9th Cir. 2000), the Defendants’ arguments lack
merit. Furthermore, nothing in the record suggests that either co-conspirator’s
testimony was “incredible or insubstantial on its face,” United States v. Necoechea,
986 F.2d 1273, 1282 (9th Cir. 1993), and the Defendants’ other arguments
regarding deficiencies in the evidence conflict with the record and are thus
insufficient to overturn their convictions.
2. The Defendants also challenge their 144-month sentences on the basis
that the district court clearly erred when it calculated an $11.8 million loss
amount—a finding that resulted in a 20-level increase in the Defendants’ offense
levels under the U.S. Sentencing Guidelines. We review factual determinations,
including “the amount of loss in cases of fraud,” for clear error. United States v.
Popov, 742 F.3d 911, 914 (9th Cir. 2014). “Clear error review is significantly
deferential and requires us to accept the district court’s findings absent a definite
and firm conviction that a mistake has been committed.” Id. That standard has not
been met here. The district court calculated the loss amount by relying on a May
2015 “invoice reconciliation,” which the Defendants challenge as “unreliable”
because it was missing several months of wholesaler data. But the district court
only needs to make a “reasonable estimate of the loss” amount. U.S.S.G. § 2B1.1
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cmt. n.3(C). It does not need “mathematical” certainty. United States v. Gainza,
982 F.3d 762, 765 (9th Cir. 2020). Moreover, given the evidence that the
reconciliation credited the Defendants’ pharmacy for known fake invoices and that
the wholesaler’s operations were mostly a sham, there is no “definite and firm
conviction” that the missing data would have reduced the loss calculation—let
alone enough to affect the Defendants’ sentences. Popov, 742 F.3d at 914; see also
U.S.S.G. § 2B1.1(b)(1)(K) (indicating that the Defendants would need a roughly
$2.3 million reduction in the calculated loss amount to affect their sentencing
range).
The Defendants also argue that the district court inadequately explained its
loss calculation, violating their due process rights. These arguments mirror their
substantive challenges to the reconciliation and can be rejected for the same
reasons. Furthermore, the district court adequately explained that it was choosing
the lower estimate to give the Defendants the “benefit of the doubt.”
3. Finally, the Defendants challenge their $11.8 million restitution order on
the ground that it is based on the “indisputably flawed and unreliable May 2015
Reconciliation.” Both parties agree that this challenge “collapses with the[]
challenge to the district court’s determination of the loss amount.” Because the
court did not err in finding an $11.8 million loss, it also did not err in ordering
$11.8 million in restitution.
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AFFIRMED.
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