                                                                            FILED
                               NOT FOR PUBLICATION                           FEB 25 2016

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



                               FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                            No. 14-50324

         Plaintiff-Appellee,                         D.C. No. 2:13-cr-00313-PA-2

               v.
                                                     MEMORANDUM*
VAHE TAHMASIAN,

         Defendant-Appellant.



                      Appeal from the United States District Court
                         for the Central District of California
                       Percy Anderson, District Judge, Presiding

                        Argued and Submitted December 9, 2015
                                 Pasadena, California

         Before: GOULD and BERZON, Circuit Judges; and STEEH,** Senior District
Judge.

         Defendant-Appellant Vahe Tahmasian (“Tahmasian”) appeals his jury

conviction and sentence for conspiracy to commit healthcare fraud, in violation of 18


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
              The Honorable George Caram Steeh, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
U.S.C. § 1349 (Count I); multiple counts of health care fraud, in violation of 18

U.S.C. §§ 1347 and 2 (Counts II–VII); and multiple counts of aggravated identity

theft, in violation of 18 U.S.C. §§ 1028A and 2 (Counts XIV-XIX). The evidence at

trial established that Tahmasian and his co-conspirator created a fictitious person,

“Jorge Luis,” to purchase Orthomed Appliance, Inc. (“Orthomed”), a durable medical

equipment company. Tahmasian and his co-conspirator, through Orthomed, carried

out the charged healthcare fraud and aggravated identity theft.

      Tahmasian argues that the district court improperly allowed FBI Special Agent

Amy Whitman (“Whitman”) to testify as an expert witness under Federal Rule of

Evidence 702. During the course of the investigation, Whitman reviewed multiple

items bearing the signature of “Jorge Luis”: a receipt, checks originating from

Orthomed, and documents sent to Medicare. Based on her familiarity with the

signatures, Whitman was allowed to offer opinion testimony as a lay witness. At trial,

Whitman testified that the signature on the receipt was consistent with the signatures

on the checks and other documents. Tahmasian later testified that it was his signature

on the receipt, but not on any of the other materials.

      Assuming without deciding that the district court erred in allowing Whitman’s

testimony, either as an expert or as a lay witness, the error was harmless. A trial error

challenged on direct appeal is subject to the “harmless error” analysis. Lee v.

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Marshall, 42 F.3d 1296, 1298 (9th Cir. 1994) (per curiam).              This requires a

determination of “whether it appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” United States v. Walters,

309 F.3d 589, 593 (9th Cir. 2002) (citation omitted). Here, any error was harmless

because the jury heard the entirety of the testimony and was free to compare the

documents during deliberations. Whitman’s testimony, therefore, did not usurp the

role of the jury, nor did it violate Tahmasian’s right to confrontation.

      Tahmasian also complains that Whitman’s testimony amounted to a fatal

variance or constructive amendment to the First Superseding Indictment. Having

failed to raise this issue at trial, we review for plain error. United States v. Ward, 747

F.3d 1184, 1188 (9th Cir. 2014).

      “The Fifth Amendment’s grand jury requirement establishes the ‘substantial

right to be tried only on charges presented in an indictment returned by a grand jury.’”

United States v. Antonakeas, 255 F.3d 714, 721 (9th Cir. 2001) (citation omitted).

Thus, “‘[a]n indictment is amended when it is so altered as to charge a different

offense from that found by the grand jury.’” Id. (citation omitted). Similarly to a

constructive amendment, a variance occurs where “the prosecution presents a complex

of facts distinctly different from that set forth in the charging instrument and not

applied where there is a single set of facts.” Id. at 722 (citation omitted); see also

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United States v. Sullivan, 522 F.3d 967, 980 (9th Cir. 2008) (per curiam). A variance

is fatal only when “the defendant could not have anticipated from the indictment what

evidence would be presented at trial.” Antonakeas, 255 F.3d at 722 (citation omitted).

        At trial, Whitman testified that checks were written by “Jorge Luis” and cashed

at check cashing stores, and that debit cards in the name of “Jorge Luis” were used to

withdraw money and make purchases at stores. Whitman’s testimony does not

amount to a fatal variance from or constructive amendment to the First Superseding

Indictment. The substance of Whitman’s testimony was specifically alleged in Count

I. Where the government alleges conduct in an indictment and offers proof of that

conduct at trial, there is no variance. See Sullivan, 522 F.3d at 981. Moreover, a

constructive amendment did not occur because the evidence at trial did not alter or

amend the indictment so as to charge a different offense from that found by the grand

jury.

        Next, Tahmasian avers that HHS Agent Amy Richard’s stricken testimony, and

the stricken exhibits first admitted into evidence through her testimony, were

prejudicial. Tahmasian is incorrect. The district court informed the jury that the

testimony and exhibits were stricken. During final instructions, the district court

directed the jury to disregard any stricken testimony and not to consider it in

deliberations. Tahmasian did not request any different instruction at any time. Jurors

                                           4
are presumed to have followed instructions given by the district court. Fields v.

Brown, 503 F.3d 755, 781 (9th Cir. 2007) (en banc). Given that Tahmasian did not

object to any of the district court’s instructions, he has failed to establish plain error.

       Based on the asserted errors described above, Tahmasian argues that cumulative

error tainted the fairness of the trial proceedings and undermined the sufficiency of

the evidence. To the extent that there were any errors during the trial proceedings,

they were isolated and do not rise to the level of cumulative error. Reviewing “all

errors preserved for appeal and all plain errors,” United States v. Necoechea, 986 F.2d

1273, 1282 (9th Cir. 1993), Tahmasian has not shown “that the combined effect of

multiple trial court errors violate[d] due process” by rendering “the resulting criminal

trial fundamentally unfair.” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007).

       Finally, Tahmasian contends that the district court relied on inadmissible

evidence during sentencing proceedings. We disagree. A review of the sentencing

transcript reveals that the district court merely summarized the evidence offered at

trial. In any event, “[a] district court may consider evidence ruled inadmissible at trial

in determining relevant conduct at sentencing.” United States v. Mattarolo, 209 F.3d

1153, 1160 (9th Cir. 2000) (citing United States v. Kim, 25 F.3d 1426, 1432–33 (9th

Cir. 1994)). The district court did not consider any impermissible evidence during the

sentencing proceedings.

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AFFIRMED.




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