                                                                                     FILED
                               NOT FOR PUBLICATION                                    FEB 11 2014

                                                                                  MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                               U.S. COURT OF APPEALS



                               FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                              No. 12-10045
                Plaintiff - Appellee,
                                                        D.C. No. 2:08-cr-00427-MCE-6
   v.
 ALEXANDER POPOV,                                       MEMORANDUM*
                Defendant - Appellant.


 UNITED STATES OF AMERICA,                              No. 12-10553
                Plaintiff - Appellee,
                                                        D.C. No. 2:08-cr-00427-MCE-7
   v.
 RAMANATHAN PRAKASH,
                Defendant - Appellant.


 UNITED STATES OF AMERICA,                              No. 12-10389
                Plaintiff - Appellee,
                                                        D.C. No. 2:08-cr-00427-MCE-
   v.                                                   EFB-5

 LANA LeCHABRIER,
                Defendant - Appellant.



         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
                     Appeal from the United States District Court
                         for the Eastern District of California
                Morrison C. England, Jr., Chief District Judge, Presiding

                        Argued and Submitted November 5, 2013
                               San Francisco, California

Before: REINHARDT and WATFORD, Circuit Judges, and LASNIK,** District
Judge.

       Ramanathan Prakash and Lana LeChabrier appeal their convictions of

conspiracy to commit health care fraud and health care fraud. Prakash and

Alexander Popov appeal the district court’s applications of multiple sentencing

enhancements. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.1

       1. Neither Prakash nor LeChabrier has shown that the district court abused

its discretion when it denied their motions to continue the trial. United States v.

Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985). Beyond labeling the government’s

expert “the key government witness,” Prakash has not shown that his defense

suffered actual prejudice as a result of the court’s decisions denying him a

continuance to obtain a rebuttal expert witness. United States v. Wilkes, 662 F.3d

524, 543 (9th Cir. 2011) (“Where the denial of a continuance prevents the




       1
        In a simultaneously filed published opinion we vacate the district court’s findings
regarding the amount of loss intended by Popov and Prakash for sentencing purposes and
remand for resentencing on that issue only.


                                                2
introduction of specific evidence, the prejudice inquiry focuses on the significance

of that evidence.”) (quoting United States v. Rivera-Guerrero, 426 F.3d 1130, 1142

(9th Cir. 2005)). Moreover, the district court reasonably considered Prakash’s

failure to act diligently to prepare his case for trial when it denied his motions. See

Flynt, 756 F.2d at 1359.

      Similarly, in light of LeChabrier’s admissions that she signed Medicare

enrollment forms, opened a bank account to receive Medicare payments, and

signed patient charts for the Richmond clinic even though she never examined a

single patient, LeChabrier has not established that the verdict would have been

different had she been granted a continuance to secure a handwriting expert’s

testimony. Wilkes, 662 F.3d at 543. Because the parties had been in trial for a

month when LeChabrier moved for a continuance, the court properly considered

the inconvenience to the court and the government in denying the request. See

Flynt, 756 F.2d at 1359.

      2. This court reviews a district court’s formulation of jury instructions for

abuse of discretion, unless the defendant failed to object at trial, in which case, the

instructions are reviewed for plain error. United States v. Chi Mak, 683 F.3d 1126,

1133 (9th Cir. 2012). A district court’s finding that a factual foundation does not

exist to support a jury instruction proposed by the defendant is reviewed for an


                                           3
abuse of discretion. United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th

Cir. 2001). Prakash argues that the district court erred by not giving a4 multiple

conspiracies instruction because there was evidence from which the jury could

have concluded that he was part of a smaller conspiracy involving just one clinic.

Whether Prakash was aware of the other clinics or other physicians involved in the

overall scheme is not determinative, however, because “a single conspiracy can

include subgroups or subagreements.” United States v. Mincoff, 574 F.3d 1186,

1196 (2009) (internal quotations and citation omitted).

      Although the district court declined to give the multiple conspiracies

instruction, the court gave the standard conspiracy instruction setting forth the

elements of a conspiracy, as well as Ninth Circuit Model Criminal Jury Instruction

8.23, Knowledge of and Association with Other Conspirators. These instructions

were sufficient to address Prakash’s defense theory that he was not involved in the

conspiracy alleged in the indictment because he was not aware of the other clinics

or the other doctors who submitted Medicare claims on behalf of those clinics.

The district court therefore did not abuse its discretion when it denied Prakash’s

request to give the multiple conspiracies instruction. United States v. Fernandez,

388 F.3d 1199, 1248 (9th Cir. 2004).

      3. We reject Prakash’s argument that the district court punished him for


                                           4
going to trial by calculating the amount of loss for sentencing purposes based on

the total amount billed to Medicare. Even though the government’s loss

calculations in the plea agreements2 in this case are dramatically different from its

loss calculations for defendants who exercised their constitutional rights to trial, “a

sentencing disparity based on cooperation is not unreasonable.” United States v.

Carter, 560 F.3d 1107, 1121 (9th Cir. 2009) (“[S]o long as there is no indication

the defendant has been retaliated against for exercising a constitutional right, the

government may encourage plea bargains by affording leniency to those who enter

pleas. Failure to afford leniency to those who have not demonstrated those

attributes on which leniency is based is unequivocally . . . constitutionally

proper.”) (internal quotation marks and citation omitted).

       4. We review a district court’s construction and interpretation of the United

States Sentencing Guidelines Manual (“Guidelines”) de novo, the district court’s

application of the Guidelines to the facts of the case for abuse of discretion, and the

district court’s factual findings for clear error. United States v. Kimbrew, 406 F.3d

1149, 1151 (9th Cir. 2005). Contrary to Prakash’s and Popov’s arguments, the

Guidelines’ sophisticated means enhancement “properly applies to conduct less

sophisticated than the list articulated in the application note.” United States v.

       2
       Prakash’s argument is based entirely on the government’s representations in plea
agreements and not on the sentences actually imposed by the court.

                                              5
Jennings, 711 F.3d 1144, 1147 (9th Cir. 2013).

      Based on the evidence in the record that Prakash and Popov applied for

Medicare provider numbers, opened bank accounts to use as part of the scheme,

reviewed and signed patient charts that reflect significant testing even though

neither doctor saw a single patient, and signed Medicare reimbursement forms and

blank redetermination request forms for a clinic involved in the overall scheme, the

district court reasonably could have concluded that the scheme was significantly

more complex than a routine Medicare fraud case.

      5. The district court did not err in applying a two-level sentence

enhancement under U.S.S.G. § 3C1.1 for obstruction of justice. Even assuming

that the failure to disclose Prakash’s trust assets to the United States probation

officer and the district court was the result of his attorneys’ errors, Prakash

neglects the impact of the recorded jail calls during which Prakash (1) directed his

son to take steps to hide his assets from the government, (2) agreed to move assets

to avoid detection, and (3) agreed to make false statements to the court about his

failing health and weight loss. The district court properly found that Prakash

provided false and misleading information to the probation officer and the court,

and that he encouraged and directed the obstructive conduct of others. See United

States v. Reyes, 577 F.3d 1069, 1083 (9th Cir. 1996) (“[T]he defendant is


                                           6
accountable for his own conduct and for conduct that he aided or abetted,

counseled, commanded, induced, procured, or willfully caused.”) (quoting

U.S.S.G. § 3C1.1 cmt. 9).

      6. We reject Prakash’s challenge to the two-level sentencing enhancement

that the district court applied for conduct involving “the conscious or reckless risk

of death or serious bodily injury.” U.S.S.G. § 2B1.1(12) (2007). Although

Prakash did not supervise the examinations performed or the services provided at

the Sacramento clinic, he signed the patient charts and the Medicare

reimbursement forms indicating that he had and there was evidence that these

services produced a serious risk to the patients’ health. “In light of our deferential

standard of review, we cannot say that the district court clearly erred in finding that

[Prakash’s] conduct posed a risk of serious bodily injury or death, even if we

would not have made the same finding.” United States v. Awad, 551 F.3d 930,

941-42 (2009) (upholding district court’s application of enhancement for conscious

or reckless risk in health care fraud case where defendant’s consistent failure to

supervise jeopardized patients’ health).

      7. Because the record below is sufficient for us to review LeChabrier’s

limited claim of ineffective assistance, we consider and reject her claim that

counsel’s failure to obtain a handwriting expert constituted ineffective assistance


                                           7
of counsel under Strickland v. Washington, 466 U.S. 668 (1984). United States v.

Rivera-Sanchez, 222 F.3d 1057, 1060 (9th Cir. 2000) (“We will only review

ineffective assistance claims on direct appeal where the record is sufficiently

developed to permit review and determination of the issue, or the legal

representation is so inadequate that it obviously denies a defendant his Sixth

Amendment right to counsel.”) (internal quotation marks and citation omitted).

      Here, LeChabrier’s trial counsel’s failure to pursue a handwriting expert was

not deficient because she told counsel that she did, in fact, sign Medicare forms

and there was no reason to question her statements. See Strickland, 466 U.S. at

691 (“[W]hen a defendant has given counsel reason to believe that pursuing certain

investigations would be fruitless or even harmful, counsel’s failure to pursue those

investigations may not later be challenged as unreasonable.”). Nor was this failure

prejudicial to her defense. The record shows that LeChabrier admitted signing

Medicare enrollment forms, opened a bank account to receive Medicare payments,

and signed patient charts for one of the clinics without ever seeing a patient. Thus,

we conclude that LeChabrier has failed to demonstrate that she was deprived of the

effective assistance of counsel.

      8. During oral argument, LeChabrier conceded that she waived any claim

she may have had under the Speedy Trial Act by failing to move for dismissal prior


                                          8
to trial. See 18 U.S.C. § 3162(a)(2); United States v. Tanh Huu Lam, 251 F.3d

852, 860 (9th Cir. 2001). We therefore decline to consider her arguments related

to the Speedy Trial Act.

      AFFIRMED.




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