                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 05 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-50051

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00668-TJH-1
 v.

VLADISLAV TCHERNIAVSKY, AKA                      MEMORANDUM*
Cherniavsky Cherniavsky, AKA Vladislav
Cherniavsky, AKA Vladislav
Tcherniyvsky, AKA Vladi,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Terry J. Hatter, District Judge, Presiding

                     Argued and Submitted December 8, 2017
                              Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and GONZALEZ ROGERS,**
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Yvonne Gonzalez Rogers, United States District Judge
for the Northern District of California, sitting by designation.
      Vladislav Tcherniavsky appeals from his conviction of one count of

conspiracy and five related counts of health care fraud on multiple grounds. We

affirm.

      1.    The district court did not abuse its discretion in admitting evidence of

Tcherniavsky’s ultrasound-related activities.1 Because such evidence was

“inextricably intertwined” with the power wheelchair conspiracy offense, the

evidence was properly exempted from the requirements of Federal Rule of

Evidence 404 and properly admitted. United States v. Williams, 989 F.2d 1061,

1070 (9th Cir. 1993).

      2.    The district court did not abuse its discretion by not excluding expert

testimony on the modus operandi of typical durable medical equipment (“DME”)

Medicare fraud schemes. Modus operandi evidence is admissible under Federal

Rule of Evidence 702 to educate jurors about the methods and techniques used in a

particular area of criminal activity. Here, the testimony proffered satisfied the

requirements of Rule 702 to educate the jury about the methods and techniques

used in Medicare fraud schemes involving DME. See United States v. Gil, 58 F.3d

1414, 1422 (9th Cir. 1995); United States v. Johnson, 735 F.2d 1200, 1202 (9th


      1
         We need not address the government’s argument that plain error review
applies because Tcherniavsky’s argument is unavailing under the less deferential
abuse of discretion standard.
                                           2
Cir. 1984). The testimony was not unduly prejudicial because it helped to explain

Tcherniavsky’s actions and was probative of his guilt from participation in the

fraudulent scheme. Fed. R. Evid. 403. The district court’s failure to provide a

limiting instruction at the time the testimony was offered was not plain error

because the absence of a limiting instruction did not materially affect the verdict.

See United States v. Olano, 507 U.S. 725, 734 (1993).

      3.    The district court did not clearly err by not discounting its loss and

restitution calculations based on testimony that some of the patients who received

power wheelchairs were actually entitled to them under Medicare.2 The

government presented sufficient evidence regarding Tcherniavsky’s business to

permit the district court to make the inference that most, if not all, of the Medicare

billing was tainted by fraud. See United States v. Walter-Eze, 869 F.3d 891,

912–13 (9th Cir. 2017). Furthermore, Tcherniavsky failed to meet the burden-

shifting standard in health care fraud cases. See Popov, 742 F.3d at 916; United


      2
         Contrary to the government’s argument, Tcherniavsky argued below that
the loss amount was overstated and thereby did not forfeit his loss amount
arguments. In any event, his claims must be reviewed for clear error. See United
States v. Popov, 742 F.3d 911, 914 (9th Cir. 2014) (“A district court’s factual
determinations, including the amount of loss in cases of fraud, are reviewed for
clear error.”). As for the restitution amount, the applicable standard of review is
clear error, irrespective of whether Tcherniavsky forfeited his restitution claims.
See United States v. Lazarenko, 624 F.3d 1247, 1249 (9th Cir. 2010) (“Factual
findings supporting an order of restitution are reviewed for clear error.”).
                                           3
States Sentencing Guidelines Manual (“USSG”) § 2B1.1, cmt. n.3 (F)(viii). He did

not present anything to rebut the government’s prima facie evidence of intended

loss and establish how much of his business was legitimate. See Walter-Eze, 869

F.3d at 912–14.

      4.    The district court did not clearly err at sentencing in holding that

Tcherniavsky was an organizer or leader of the offense. The criminal activity

involved at least five participants, and there are facts to indicate that Tcherniavsky

controlled or led others in the enterprise. USSG § 3B1.1(a). The fact that the

participants may have been independent contractors, or that there may have been

other leaders, does not render application of the organizer or leader enhancement

erroneous. United States v. Montano, 250 F.3d 709, 715–16 (9th Cir. 2001);

USSG § 3B1.1, cmt. n.4.

      AFFIRMED.




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