                                                                           FILED
                           NOT FOR PUBLICATION                              APR 14 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50082

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00532-SVW-2

  v.
                                                 MEMORANDUM *
GEVORK KARTASHYAN,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-50090

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00532-SVW-1

  v.

ELIZA SHUBARALYAN,

              Defendant - Appellant.



                   Appeals from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                             Submitted April 12, 2011 **
                                Pasadena, California

Before: BYBEE and M. SMITH, Circuit Judges, and DAWSON,*** District Judge.

      Defendants-Appellants Gevork Kartashyan and Eliza Shubaralyan timely

appeal their jury convictions for health care fraud in violation of 18 U.S.C. § 1347,

and Defendant Kartashyan appeals his jury conviction for conspiracy to commit

health care fraud in violation of 18 U.S.C. § 1349. As the facts and procedural

history are familiar to the parties, we do not recite them here except as necessary to

explain our disposition. We affirm.

      Reviewing de novo, United States v. Rocha, 598 F.3d 1144, 1153 (9th Cir.

2010), we hold that the district court properly denied Defendants’ motion under

Federal Rule of Criminal Procedure 29 regarding the health care fraud charges.

Viewing the evidence in the light most favorable to the government, a reasonable

juror could conclude that Defendant Kartashyan knew that the prescriptions were

fraudulent because he procured them from an office that was selling fraudulent

prescriptions, delivered the power wheel chairs without conducting a home

assessment, failed to explain to the beneficiaries what forms they were signing, and

        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Kent J. Dawson, United States District Judge for the
District of Nevada, sitting by designation.

                                           2
did not seek co-pay reimbursement. See United States v. Alarcon-Simi, 300 F.3d

1172, 1176 (9th Cir. 2002) (“In ruling on a Rule 29 motion, the relevant question is

whether, after 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.” (internal quotation marks omitted)). Further, a

reasonable juror could conclude that Defendant Shubaralyan knew that the

prescriptions were fraudulent because she withdrew large amounts of cash from

her medical supply business’s bank accounts, of which she was the sole owner and

through which she submitted all of the claims to Medicare; her husband and

employee, Kartashyan, bought prescriptions for cash; she submitted for

reimbursement 58 out of 149 prescriptions that were from two signatures for a

variety of prescribers; and she did not require a 20% co-payment from the

beneficiaries despite them signing paperwork that they owed the co-pay. The jury

had enough evidence to convict the Defendants on the health care fraud charges.

      Reviewing for plain error, United States v. Mohsen, 587 F.3d 1028, 1030

(9th Cir. 2009), we reject the Defendants’ argument that the district court erred by

failing to sua sponte instruct the jury that the Defendants were not required to

independently ascertain medical necessity. The trial court correctly instructed the

jury as to the elements of health care fraud, and instructed them that they could


                                          3
only find the Defendants guilty on those charges. Further, when the jury submitted

a question about one of the Medicare regulatory violations, the court instructed that

this was not sufficient in and of itself for a finding of fraud. Accordingly, we

cannot conclude on this record that the district court was required to do more or

that the Defendants were prejudiced.

      AFFIRMED.




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