                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4118


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

SARGIS TADEVOSYAN,

                Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:11-cr-00142-1)


Argued:   February 1, 2013                    Decided:   May 2, 2013


Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: A. Courtenay Craig, CRAIG LAW OFFICE, Huntington, West
Virginia; Tony Mirvis, THE MIRVIS LAW FIRM, P.C., Brooklyn, New
York, for Appellant.     Meredith George Thomas, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
ON BRIEF: R. Booth Goodwin II, United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Appellant Sargis Tadevosyan (“Appellant”) was convicted of

one    count      of    conspiracy         to   commit          healthcare          fraud      and    wire

fraud       under      18    U.S.C.     § 1349           and    one      count      of    aiding       and

abetting aggravated identity theft under 18 U.S.C. §§ 1028A and

2(a).       The district court denied Appellant’s pretrial motion to

suppress photographs that were seized despite being outside the

scope       of    a    search    warrant.            The       district       court      also     denied

Appellant’s motion for a minimal role reduction and sentenced

him    to    forty-eight           months’      imprisonment             as    to     count     one    and

twenty-four            months’       imprisonment          as       to    count        two,     to    run

consecutively.

        Appellant           raises     five      issues          on      appeal.            First,      he

challenges            the   sufficiency         of       the     evidence        on      the    merits.

Second,          he    contends       that      the        district           court       erred       when

instructing the jury as to the “specific intent” element of the

conspiracy offense.                  Third, he argues that the district court

incorrectly            denied        his      motion           to     suppress           the      seized

photographs.            Fourth, he alleges that the district court erred

in    not    applying        the     minimal     role          offense        level      reduction      at

sentencing.            Finally, he claims that the government violated the




                                                     2
Brady 1 doctrine in failing to turn over evidence related to his

codefendant.       Finding no error, we affirm.



                                          I.

                                          A.

     In 2010, codefendants Igor Shevchuk and Arsen Bedzhanyan,

both Russian nationals, were living in New York City on student

visas. 2       They were approached by a man known as “Garik” and

offered       $5,000   each   to   open   bank     accounts      in       the   names   of

individuals who had left the country.                    Shevchuk and Bedzhanyan

agreed, and Garik had false identification cards created with

their photographs.

     In December of 2010, Bedzhanyan and Shevchuk traveled with

Garik    to    West    Virginia.     Bedzhanyan         and    Shevchuk     used    false

identification cards and business papers, supplied by Garik, to

open a number of bank accounts in and around Charleston, West

Virginia.         At    one   bank--the        United    Bank        in   Dunbar,    West

Virginia--Shevchuk used the name Klim Baykov, along with Klim

Baykov’s      Social    Security    Number,      to     open    an    account     for   KB




     1
         Brady v. Maryland, 373 U.S. 83 (1963).
     2
       We recite the facts in the light most favorable to the
government, as the prevailing party at trial. See United States
v. Jefferson, 674 F.3d 332, 341 n.14 (4th Cir. 2012).



                                          3
Support Group, Inc. 3            KB Support was one of six “false-front”

healthcare        providers 4      in   West       Virginia   linked     to     the   bank

accounts opened by Bedzhanyan and Shevchuk.                       Each of the false-

front providers had an office in the Charleston area.                           Together,

these providers submitted more than $4 million in fraudulent

claims to Medicare over the course of the alleged conspiracy,

which were paid via wire transfers to the bank accounts.

       In the spring of 2011, Garik told Bedzhanyan and Shevchuk

that they had to return to West Virginia to fix a problem with

the wire transfer capability of the United Bank account.                              Garik

informed Bedzhanyan that he would be unable to travel with them,

and instead Garik’s friend would transport them.

       Garik’s friend turned out to be Appellant.                         He picked up

Bedzhanyan and Shevchuk sometime in the evening on May 5, or

early      on   May   6,   2011,    for   the      drive   from   New    York    to    West

Virginia.        Appellant brought with him the United Bank card as

well       as   the   false     identification         card   that      Bedzhanyan      and

Shevchuk had previously used to open the United Bank account.

Bedzhanyan testified at trial that when they got into the car,


       3
        This act formed part of the basis for Appellant’s
conviction of aiding and abetting aggravated identity theft.
       4
       False-front providers are business entities created to
bill Medicare for healthcare services that are never actually
rendered.



                                               4
Appellant “made sure we kn[e]w about what we’re going there for

and     everything    had    been    explained          to    us,”   and    knew    that

Bedzhanyan     and    Shevchuk       were       going    to    the   bank     to    sign

paperwork.     J.A. 776.

        As they drove through Maryland, a state trooper stopped

Appellant for speeding.          Before the trooper approached the car,

Appellant handed Bedzhanyan the false identification card and

the bank card and told him to hide them by pushing them into the

gap between the window and the car door.                         Because Appellant

spoke    limited     English,   he    instructed         Bedzhanyan    to    tell    the

trooper that the men were traveling to West Virginia to buy a

car.

       Once   in   Dunbar,    Appellant         had   difficulty     retrieving      the

cards from the door frame.              Eventually, using a set of tools

purchased from a car supply store, he was able to recover them.

While Appellant worked, his cell phone rang continuously; Garik

was     attempting     to    reach    Appellant         because      Bedzhanyan     and

Shevchuk were late for their meeting at the bank.                           Garik then

called Shevchuk and told him to give Appellant the phone.                             As

Appellant spoke with Garik, Bedzhanyan and Shevchuk observed him

looking at a set of keys.

       Appellant then drove Bedzhanyan and Shevchuk to the bank

and gave Bedzhanyan the cards and a cell phone, instructing the

pair to meet him at a nearby McDonald’s restaurant when they

                                            5
were finished.           After completing their business at the bank,

Bedzhanyan and Shevchuk walked to McDonald’s, where Appellant

picked them up and told them that he needed to make a few stops,

including a stop to pick up mail.                        Appellant first stopped at a

car    dealership,       where      law     enforcement          agents,       who    had    been

monitoring Appellant’s movements, arrested all three men.

       Law enforcement agents obtained search warrants for seven

locations,     including           the     six       false-front         offices       in    West

Virginia, and the car Appellant had been driving.                                    The agents

had previously spotted a car owned by Ara Ohanyan at one of the

false    fronts    and       had    obtained         a   copy    of     Ohanyan’s      driver’s

license photograph.            The agents had also reviewed a surveillance

tape    depicting       an    unnamed       individual          who   rented     one    of    the

false-front offices.

       When   they      searched         Appellant’s        car,      agents     found       nine

folders in the pocket behind the driver’s seat.                                  The folders

contained     photographs,              including        pictures       of   Appellant       with

Ohanyan and the unnamed individual.                        In the driver’s side door,

agents    found     a    set       of    keys    labeled         with    the    false       front

addresses.        When       the   agents       searched        the   false     fronts,      they

found mail littering the floor and desks of the offices.

                                                B.

       After being charged in a two-count indictment, Appellant

moved to suppress the photographs recovered from the car.                                     The

                                                 6
district court denied the motion as to all photographs depicting

Appellant      with    Ohanyan      or   the       unnamed      individual,       concluding

that   although       the    photographs         were    outside       the     scope   of    the

warrant, they were properly seized because they were in “plain

view.”

       During    the    charge      conference,          Appellant      objected       to    the

district     court’s        jury   instruction          regarding       specific       intent,

arguing that it “treats it all as a general conspiracy instead

of   [a]    conspiracy       to    commit    a     violation      of     the    health      care

statute or the wire fraud statute.”                           J.A. 619.        The district

court overruled the objection.                     After deliberations, the jury

found Appellant guilty of both counts.                         Appellant filed written

motions for a judgment of acquittal and for a new trial, both of

which the district court denied.

       Prior    to    sentencing,        counsel        for    Appellant       informed      the

government      that    he    had    evidence        suggesting         that     codefendant

Shevchuk 5     had     an    alternate      identity          under    the      name    “Idlar

Adjuglov.”      The government then reviewed its files and found (1)

Shevchuk’s      visa    application         that     included      the       e-mail    address

adjigul@mail.ru, (2) an alternate spelling of “Adjuglov” listed

as Shevchuk’s mother’s maiden name on the same application, and


       5
           Shevchuk and Bedzhanyan testified against Appellant at
trial.



                                               7
(3) summary translations of Shevchuk’s jailhouse phone calls in

which the translator noted that Shevchuk was called “Eldar.”

       At   sentencing,      Appellant         argued      that   this      information

should have been provided to the defense under Brady.                           Appellant

informed the district court that he intended to move for a new

trial.      The government responded that both a copy of the visa

application    and    the    written    translations         of     Shevchuk’s       phone

calls had been provided to Appellant during pre-trial discovery.

The district court directed Appellant to file a motion for new

trial, J.A. 911, which Appellant did not do.

       Appellant     also   asked   the    court      to    apply    the    §   3B1.2(a)

Sentencing Guidelines minimal role reduction, arguing that his

only involvement in the scheme was to drive two individuals to

West     Virginia.      The     court     denied        Appellant’s        request      and

sentenced him to forty-eight months’ imprisonment as to count

one and twenty-four months’ imprisonment as to count two, to run

consecutively.       This appeal followed.



                                          II.

                                          A.

       We   first    consider    whether        the   district      court       erred   in

denying Appellant’s motion for judgment of acquittal, an issue

we review de novo.          United States v. Alerre, 430 F.3d 681, 693

(4th Cir. 2005).            When the motion is based upon a claim of

                                           8
insufficient evidence, the jury’s verdict must be sustained “if

there is substantial evidence, taking the view most favorable to

the government, to support it.”                  United States v. Abu Ali, 528

F.3d 210, 244 (4th Cir. 2008) (internal quotations omitted).                        In

evaluating the sufficiency of the evidence, this court does not

reweigh evidence or reassess the factfinder’s determination of

witness        credibility      and     can      “reverse      a    conviction      on

insufficiency        grounds    only    when     the    prosecution’s    failure    is

clear.”        United States v. Moye, 454 F.3d 390, 394 (4th Cir.

2006) (internal quotations omitted).

       Regarding the conspiracy charge, Appellant argues that the

government failed to offer any witness to demonstrate that he

was aware that the objects of the conspiracy were healthcare and

wire fraud, and therefore failed to prove the requisite mens

rea.      As    to   the   charge      for    aiding    and   abetting   aggravated

identity theft, Appellant contends that the government failed to

show that “Klim Baykov” was an actual person and that Appellant

knew that he was an actual person, both of which are required

for a conviction.

       The government responds that there was substantial evidence

that   Appellant       agreed    to    be    a   part    of   the   conspiracy     and

understood the nature of the scheme, and also argues that it

presented sufficient evidence to demonstrate that Klim Baykov

was a real person.           In response to Appellant’s contention that

                                             9
it failed to present evidence to show that Appellant knew that

Klim   Baykov   was   a   real    person,     the     government   submits   that

Appellant did not make this argument before the district court,

and therefore waived it on appeal.

       To convict Appellant of conspiracy to commit healthcare or

wire fraud, the government had to prove that: (1) two or more

persons in some way or manner came to a mutual understanding to

try    to   accomplish    a    common    and     unlawful     plan   to   commit

healthcare or wire fraud, and (2) Appellant willfully became a

member of that conspiracy.          See United States v. Fleschner, 98

F.3d 155, 159 (4th Cir. 1996).               Although Appellant argues that

the    government     proved     only   that     he     innocently   drove    his

codefendants to West Virginia, the record demonstrates that he

did much more.

       To begin with, Appellant sought assurances from Bedzhanyan

and Shevchuk that they understood why they were traveling to

West Virginia, namely to facilitate same-day wire transfers out

of the United Bank account.             Appellant also had with him the

false identification card and the bank card that Bedzhanyan and

Shevchuk had not seen since they were in Garik’s possession,

which the pair then used during their meeting with the bank.

When stopped by a Maryland state trooper, Appellant instructed

Bedzhanyan to hide the cards and to lie about the purpose of

their trip to West Virginia.             Law enforcement officers found

                                        10
keys to the false-front offices in the driver’s door of the car

Appellant was driving.              Finally, Appellant stated that he needed

to    pick   up     mail    in   West    Virginia,      and       officers       found    mail

littering the false-front offices.

       Appellant’s focus on the lack of direct evidence regarding

his knowledge ignores the ability of the jury to make inferences

from other evidence.             Both direct and circumstantial evidence

may sustain a conviction, United States v. Harvey, 532 F.3d 326,

333 (4th Cir. 2008), and there was more than sufficient evidence

from which the jury could infer Appellant’s knowledge about the

objects      of     the    conspiracy.         Appellant’s          connection      to     the

fraudulent        healthcare     providers         could     be     inferred      from     his

possession of the false identification card, the bank card, and

the   keys    to     the    false    fronts.        Additionally,           a    jury    could

reasonably infer that the mail Appellant intended to pick up

before      being    arrested     was    the    same    mail      found     at    the    false

fronts.      Drawing all inferences in favor of the government, we

find that substantial evidence supported the jury’s verdict as

to count one.

       We    reach    a    similar      conclusion      as     to    the    second       count

alleging that Appellant aided and abetted aggravated identify

theft. Specifically, we are satisfied that the victim of the

offense, Klim         Baykov,    was     an    actual      person.         Bedzhanyan      and

Shevchuk testified that Garik told them that they were opening

                                              11
accounts    under   the   names      of     real      people    who    had    left   the

country.     In addition, the United Bank account was successfully

opened using Klim Baykov’s Social Security Number.                       Finally, the

government    presented      a    certificate         from    the    Social     Security

Administration      indicating       that       the    Social        Security     Number

associated with Klim Baykov on the bank account actually did

belong to a person named Klim Baykov.                        Together, these facts

constitute    substantial        evidence      supporting      the    jury’s    finding

that Klim Baykov was a real person. 6

                                          B.

     We    next   consider       Appellant’s       argument     that    the     district

court erred in its instructions to the jury as to Appellant’s

specific intent to commit either healthcare fraud or wire fraud.

We review de novo a claim that the district court misstated the

law in a jury instruction.           See United States v. Jefferson, 674

F.3d 332, 351 (4th Cir. 2012).                   “[W]e do not view a single

instruction in isolation; rather we consider whether, taken as a

whole and in the context of the entire charge, the instructions



     6
       Appellant also contends that the government failed to show
that he knew Klim Baykov was a real person.      Having failed to
present that argument to the district court, we decline to
consider Appellant’s new theory on appeal. See United States v.
Chong Lam, 677 F.3d 190, 200 (4th Cir. 2012) (“When a defendant
raises specific grounds in a Rule 29 motion, grounds that are
not specifically raised are waived on appeal.”).



                                          12
accurately and fairly state the controlling law.”          United States

v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996).

      Appellant argues that the instruction given by the court

was too general in that it only required the government to prove

that Appellant agreed to commit a criminal act, rather than one

of the specific types of fraud charged in the indictment.               The

government responds that the Appellant focuses too narrowly on

the   district   court’s   instruction   regarding   the   definition    of

“specific intent.”     According to the government, if the court’s

instructions are read in their entirety, the court correctly

stated the government’s burden of proof.

      The instruction to which Appellant objected reads:

      To establish specific intent, the government must
      prove beyond a reasonable doubt that the defendant
      knowingly did an act which the law forbids, purposely
      intending to violate the law. That is not to say that
      the defendant must have known he was violating a
      particular statute, but only that the defendant knew
      he was acting wrongly and knew he was violating the
      law in general when he acted.

J.A. 608.    Earlier in the jury instructions, the court stated

that the government was required to prove beyond a reasonable

doubt that

      two or more persons in some way or manner, positively
      or tacitly, came to a mutual understanding to try to
      accomplish a common unlawful plan, that is, to commit
      health care fraud or to commit wire fraud, as charged
      in count one; and . . . that [Appellant] willfully
      became a member of that conspiracy.



                                   13
J.A. 590.     The district court recited these elements again later

in the instructions.             J.A. 614-15.       The court also instructed

the jury that “[t]o act willfully in a conspiracy means to act

voluntarily and intentionally, and with specific intent to do

something the law forbids.”             J.A. 594.

     We conclude that the jury instructions, read as a whole,

correctly state the law, including the government’s burden of

proof.      The    instruction      to     which    Appellant         objects   defines

specific    intent,    and       thus    necessarily       contains      more   general

language    than     the   separate        recitation       of    the    elements     of

conspiracy to commit wire and healthcare fraud.                          The district

court’s    instructions      as     to    the    elements        of   the   crime,    by

contrast, are nearly identical to the language that Appellant

suggests is correct.

     Appellant’s       related      assertion       that    the       government     must

prove that he knew he was violating a specific statute is based

on a case decided by a sister circuit analyzing a completely

different statute.         See United States v. Brodie, 403 F.3d 123,

147 (3d Cir. 2005) (discussing the Trading with the Enemy Act,

which specifically requires that the government prove that the

defendant have some knowledge of the underlying law prohibiting

trade with Cuba, see 50 App. U.S.C. § 1 et seq.).                               No such

requirement       exists   for    either    of     the   crimes       charged   in    the



                                           14
conspiracy indictment.           See 18 U.S.C. §§ 1349, 1028A, 2.                          In

sum, we find no error in the district court’s instructions.

                                           C.

     We next turn to Appellant’s assertion that the district

court erred in failing to suppress the photographs seized by law

enforcement    officers       from    the       car    Appellant       drove    to    West

Virginia.      When    considering         a    district      court’s    denial       of    a

motion to suppress, we review the court’s factual findings for

clear error and legal conclusions de novo.                         United States v.

Lewis, 606 F.3d 193, 197 (4th Cir. 2010).                          We construe the

evidence in the light most favorable to the government, as the

prevailing party at trial.           Id.

     The    district     court       declined         to    suppress    some    of     the

photographs    seized    by    the    agents--specifically              those   showing

Appellant with Ohanyan and the unnamed individual who rented one

of the false-front offices--finding that they were in “plain

view.”     Appellant contends that the photographs should not have

been seized because they were not incriminating, citing to an

officer’s    testimony    at     trial         that   the    photographs       were    not

“criminal.”

     The plain view doctrine applies in “the situation in which

the police have a warrant to search a given area for specified

objects, and in the course of the search come across some other

article of incriminating character.”                   Coolidge v. New Hampshire,

                                           15
403 U.S. 443, 465 (1971).          Law enforcement may seize evidence in

plain view during a lawful search if “(1) the seizing officer is

lawfully present at the place from which the evidence can be

plainly viewed; (2) the seizing officer has a lawful right of

access to the object itself; and (3) the object’s incriminating

character is immediately apparent.”                   United States v. Williams,

592 F.3d 511, 521 (4th Cir. 2010) (internal quotations omitted).

“The incriminating nature of an object is immediately apparent

if, under the circumstances, the officer has probable cause to

believe that the item is linked to criminal activity.”                      Russell

v. Harms, 397 F.3d 458, 465 (7th Cir. 2005) (internal quotations

omitted).

       We agree with the district court that the incriminating

character of the photographs was immediately apparent based on

the officers’ knowledge about the other individuals depicted in

them    and   their    connections     to       the     fraud    scheme.      Before

conducting     the      search,     law        enforcement       agents     reviewed

photographs of Ohanyan, whose car was spotted at one of the

false-front offices, and of an unnamed individual, who rented

one of the offices.          The agents immediately identified these two

individuals    in     the    photographs       with    Appellant.     Because     the

photographs showed Appellant associating with people connected

to   the   false-front       providers,        the    district    court    correctly

determined    that     the    photographs       were    incriminating,      as   they

                                          16
tended      to    link   Appellant      with    the   crimes     alleged   in   the

indictment. 7

       It is true, as Appellant contends, that a law enforcement

agent      testified     that   there   was    nothing     “criminal”   about   the

photographs at issue.           J.A. 204.      But it is not clear to us what

the agent meant by his testimony, nor does it matter.                      Rather,

the relevant question is whether the photos were incriminating,

in the sense that the agents had probable cause to believe that

they were evidence of criminal activity.                 See Harms, 397 F.3d at

465.       The photographs in question showed Appellant associating

with persons known to be linked to the fraud scheme, which is

sufficient to show their incriminating character.

                                          D.

       We next turn to Appellant’s argument that the court erred

in refusing to apply the minimal role reduction to his offense

level      at     sentencing.       Under      §   3B1.2    of   the    Sentencing

Guidelines, a district court must reduce the defendant’s offense

level if it finds that he played a minimal or minor role in the

offense.         A defendant is entitled to a four-level adjustment if

his or her role was minimal, see U.S.S.G. § 3B1.2(a), and a two-

level adjustment if his or her role was minor but not minimal,

       7
       Because we hold that the photographs were properly seized,
we do not reach the government’s alternative argument that the
good faith exception to the warrant requirement should apply.



                                          17
see id. § 3B1.2(b).          The minimal participant reduction applies

when the defendant’s “lack of knowledge or understanding of the

scope and structure of the enterprise and of the activities of

others is indicative of a role as minimal participant.”                     Id. §

3B1.2 cmt. n. 4.

     In determining whether the reduction is appropriate, the

“critical inquiry is . . . not just whether the defendant has

done fewer ‘bad acts’ than his co-defendants, but whether the

defendant’s conduct is material or essential to committing the

offense.”       United States v. Pratt, 239 F.3d 640, 646 (4th Cir.

2001).    A defendant seeking a downward adjustment for his or her

minimal    role   in   the    offense    must   prove   that    he    or   she   is

entitled to it by a preponderance of the evidence.                    See United

States v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999).                           We

review    the   district     court’s    determination    on    this   issue      for

clear error.      United States v. Daughtrey, 874 F.2d 213, 218 (4th

Cir. 1989).

     Appellant contends that the totality of the circumstances,

including his lack of involvement prior to driving Bedzhanyan

and Shevchuk to West Virginia, the fact that he did not discuss

the plan with them during the drive, and the fact that Appellant

did not himself set up any bank accounts, indicates that he was

the least culpable of those involved in the scheme.



                                        18
     We have already summarized the facts of record supporting

Appellant’s convictions.             Those same facts we think show clearly

that Appellant’s participation was both material and essential

to committing the offenses.                We therefore affirm the district

court’s    decision       not   to   apply    the       minimal      role       reduction     at

sentencing.

                                             E.

     Finally,       we      consider      Appellant’s          contention            that     the

government’s failure to provide certain evidence to the defense

violated    the     Brady    doctrine.            According     to     Appellant,           after

being alerted to Shevchuk’s possible alternate identity prior to

sentencing,        the     government        admitted          to     finding          evidence

suggesting that Shevchuk had called himself “Ildar Adjuglov.”

Appellant        argues     that     an    alternate         identity           is     valuable

impeachment evidence, and that the government therefore violated

its responsibility under Brady by not turning it over in advance

of trial.

     With few exceptions, the jurisdiction of circuit courts is

limited     to    reviewing        appeals       from    all        final       decisions     of

district courts.            28 U.S.C. § 1291.              Appellant contends that

this requirement is satisfied here because the district court

“effectively        denied”        his    oral      motion      for         a    new     trial.

Appellant’s Reply Br. at 1.



                                             19
     We disagree.         The record shows that the court instructed

Appellant to file a motion for new trial; nothing resembling a

denial   of   an   oral   motion   occurred.   J.A.   911.   Appellant,

however, never filed a motion, which in turn means that the

district court never considered the claim.        Accordingly, we lack

jurisdiction to review the issue.



                                    III.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                               AFFIRMED




                                     20
