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.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                          v.                                                 No. 15-556-cr

NINA JAFARI, AKA Fatemeh Jafari,
                                 Defendant-Appellant.
----------------------------------------------------------------------
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


                                            2
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.

                                              5
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.




                                              8
        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.

                                             9
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



                                             10
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).


                                            11
       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.

                                             12
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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