                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 14 2012

                                                                        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. 10-50400

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00321-MMM-1

  v.
                                                 MEMORANDUM *
MANUK KARAPETYAN,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                      Argued and Submitted February 6, 2012
                               Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

       Manuk Karapetyan appeals his jury trial convictions on twenty-two counts

of health care fraud, two counts of transactional money laundering, and four counts

of concealment money laundering. Karapetyan challenges the district court’s

decision to give the jury a Jewell deliberate ignorance instruction on each of the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
charges.1 That instruction allowed the jury to convict based on either Karapetyan’s

actual knowledge or his awareness of a high probability of criminality and

deliberate avoidance of the truth. Karapetyan also challenges his convictions for

insufficiency of the evidence. We have jurisdiction under 18 U.S.C. § 1291 and

we affirm.2

      We review the district court’s decision to give a Jewell deliberate ignorance

instruction for abuse of discretion. United States v. Heredia, 483 F.3d 913, 921

(9th Cir. 2007) (en banc). We review the sufficiency of the trial evidence de novo.

United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir. 2004). “There is

sufficient evidence to support a 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.’” United States v.

Sullivan, 522 F.3d 967, 974 (9th Cir. 2008) (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979) (emphasis in Jackson)).

      1.      A Jewell deliberate ignorance instruction is proper where “the

instruction is ‘supported by law and has foundation in the evidence.’” Heredia,


      1
        The deliberate ignorance instruction was first recognized in United States
v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc).
      2
       Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                        2
483 F.3d at 922 (quoting Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)).

The instruction was proper here because the evidence supported a conclusion that

Karapetyan (1) was aware of a high probability that the business was illegal and (2)

deliberately avoided the truth. Heredia, 483 F.3d at 917, 922.

      The first prong of the Jewell instruction was satisfied by evidence that

Karapetyan was suspicious of illegality. In 2004, Karapetyan claims that a friend,

Sedrek Asatryan, approached Karapetyan with a business proposal to establish a

medical supply company, USA Independent Medical Corporation (“USA

Independent”). USA Independent was a sham company, and Karapetyan became

deeply involved in a scheme to defraud the Medicare system. Only Karapetyan

was listed as the corporation’s president, secretary, and agent for service of process

on the company’s Articles of Incorporation and was named as an officer and CEO

of USA Independent on tax documents. Karapetyan’s alleged partner in this

scheme, Asatryan, told Karapetyan that he was going to transport supplies for the

sham company, but Karapetyan never did so. Karapetyan admitted that he never

witnessed any signs of business activity at the office space that he rented, and yet

he deposited large sums of money, totaling over $500,000 in Medicare

reimbursement funds, into accounts that he opened. Karapetyan knew that his

alleged partner refused to be named on anything that might connect him to the


                                        3
company. Finally, Karapetyan claimed that he questioned Asatryan on a few of

these suspect aspects of the business, indicating that he was suspicious of the

activity, but then accepted blanket non-answers rather than inquiring further.

        The second prong of the instruction was met by evidence that Karapetyan

deliberately avoided learning the truth when presented with circumstances that

raised his suspicion. Karapetyan accepted the notion that the company was to be

kept a secret because Asatryan did not want people to know that his family was

living in the United States because his father was famous; Karapetyan asked no

follow-up questions to this request for secrecy. When Karapetyan asked Asatryan

why he was not transporting medical supplies as they had agreed, he accepted

Asatryan’s unbelievable answer—that he was transporting the large quantities by

way of ship, even though Asatryan had previously told Karapetyan that he would

be transporting the supplies by truck—without inquiring further. Karapetyan did

not question why the business had to be put in his own name; he simply accepted

that Asatryan had bad credit. And Karapetyan deposited large sums of money into

two bank accounts, even though he admitted that he saw no signs of an actual

business in the leased office space, without asking where the money was coming

from.




                                       4
      Even if the district court had abused its discretion in giving the Jewell

instruction, the error was harmless. “Application of the harmless error doctrine is

appropriate where the evidence of guilt is so overwhelming that a conviction is

compelled.” United States v. Alvarado, 838 F.2d 311, 317 (9th Cir. 1988) (finding

that an improper Jewell instruction was a harmless error). There was

overwhelming evidence that Karapetyan actually knew beyond a reasonable doubt

of the scheme to defraud Medicare, and the error here, if any, was harmless.

      2.     Karapetyan challenges the sufficiency of the evidence of his

knowledge and intent to commit the charged crimes. The mens rea here could

have been proven with evidence either that Karapetyan actually knew of the

illegality of his conduct, or that he was aware of a high probability of criminality

and deliberately avoided the truth. Viewing the evidence in the light most

favorable to the government, there was sufficient evidence to convict Karapetyan

under either theory. See supra.

      As to Karapetyan’s intent to defraud the health care system,3 “fraudulent

intent may be established by circumstantial evidence . . . .” United States v. Cloud,

872 F.2d 846, 852 n.6 (9th Cir. 1989). Karapetyan established USA Independent



      3
       We assume without deciding that intent is required. See 18 U.S.C. §§
1347, 1956, 1957.

                                        5
for the sole purpose of defrauding the Medicare system: his name appears on all

documents related to the business, and the business had no legitimate purpose at

any time. Karapetyan opened both business bank accounts and signed all transfers

of money into and out of those accounts. Karapetyan wrote two checks to himself

and deposited them into his personal bank account and, four years later, after

$65,000 had been withdrawn from one account and returned to Medicare as part of

an investigation into the illegitimacy of USA Independent, Karapetyan withdrew

the remaining $15,025.10 to close the account. Moreover, fraudulent intent may be

inferred simply from defendant’s engaging in “highly unusual practice[s].” United

States v. Laykin, 886 F.2d 1534, 1540 (9th Cir. 1989). Thus, the jury could infer

intent from the simple fact that a business earning hundreds of thousands of dollars

for doing no apparent work at all was “highly unusual.” Id.

      AFFIRMED.




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