                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 10 2010

                                                                        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. 09-50107

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00363-GAF-1

  v.
                                                 MEMORANDUM *
JOCELYN ESPINO JAVAN, AKA Joy
Javan,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
               Gary A. Feess, United States District Judge, Presiding

                              Submitted June 7, 2010 **
                                Pasadena, California

Before: D.W. NELSON and GOULD, Circuit Judges, and DOWD, Senior United
States District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable David D. Dowd, Jr., Senior United States District
Judge for the Northern District of Ohio, sitting by designation.
      Appellant Jocelyn Espino Javan appeals her conviction and sentence for four

counts of health care fraud in violation of 18 U.S.C. § 1347 and one count of

making a materially false statement in violation of 18 U.S.C. § 1001(a)(2). We

have jurisdiction under 28 U.S.C. § 1291 and we AFFIRM.

                                          I.

      We first reject Javan’s argument that the Government failed to present

sufficient evidence to support her convictions. We review the sufficiency of the

evidence underlying a conviction de novo. United States v. Odom, 329 F.3d 1032,

1034 (9th Cir. 2003). We view the evidence in the light most favorable to the

prosecution and affirm if “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319 (1979).

      The Government presented evidence sufficient for a rational juror to find

beyond a reasonable doubt that Javan “knowingly and willfully” intended to

defraud health insurers, see 18 U.S.C. § 1347, including evidence that Javan knew

Valley Medical Center (“VMC”) would not charge patients a co-payment or

deductible, assisted patients in signing multiple blank insurance billing forms, and

knew that patients’ insurers were billed thousands of dollars for medical

procedures they never received. The Government also presented evidence


                                           2
sufficient for a rational juror to find beyond a reasonable doubt that the VMC

scheme affected interstate commerce, including evidence that defrauded insurer

Blue Shield of California provided insurance to federal employees through

participation in the Federal Employees Benefit Plan located in Washington, D.C.,

and that defrauded insurer CIGNA had its principal place of business in

Pennsylvania and processed several VMC claims from Texas. Finally, the

Government presented evidence sufficient for a rational juror to find beyond a

reasonable doubt that Javan made a “materially” false statement to FBI Agent

Murdoch, see 18 U.S.C. § 1001(a)(2), because her statement had the potential to

affect the FBI’s investigation, United States v. Somsamouth, 352 F.3d 1271, 1276

(9th Cir. 2003), including evidence that Javan’s lie bought her time to inform VMC

of the FBI’s investigation before the FBI could obtain a search warrant to seize

VMC’s records.

                                           II.

      We next reject Javan’s argument that the district court committed plain

evidentiary errors. “Under a plain error standard, relief is not warranted unless

there is: (1) an error; (2) that was plain; and (3) that affected the defendant’s

substantial rights. Even if these conditions are met, reversal is discretionary and

will be granted only if the error seriously affects the fairness, integrity, or public


                                            3
reputation of judicial proceedings.” United States v. Tran, 568 F.3d 1156, 1163

(9th Cir. 2009) (internal citations and quotation marks omitted).

      The district court did not plainly err by allowing Agent Murdoch to testify

about the use of fictitious business names in health care fraud. Contrary to Javan’s

assertion that Murdoch’s testimony constituted “an opinion or inference as to

whether the defendant did or did not have the mental state or condition constituting

an element of the crime charged” in violation of Federal Rule of Evidence 704(b),

Murdoch’s testimony did not refer to Javan and merely made a general point about

why recruiters in insurance fraud schemes “sometimes use aliases, DBAs, and

fictitious names.”

      Nor did the district court plainly err by failing to exclude evidence about

Javan’s link to Variel Golden Care under Federal Rule of Evidence 403. Evidence

of a close and lucrative business relationship between Javan and Ray Shaolian,

VMC’s owner and the alleged mastermind of the VMC scheme, was probative of

Javan’s guilt because it undermined Javan’s claim that she merely had an arms-

length relationship with VMC.

                                         III.

      We also reject Javan’s argument that the district court committed reversible

error when instructing the jury. Though the jury was erroneously instructed that it


                                          4
need not find that Javan knew her conduct was illegal, that error was harmless

because the jury was also instructed that in order to convict it had to find that Javan

acted with “intent to deceive or cheat” health insurers. United States v. Awad, 551

F.3d 930, 940 (9th Cir. 2009). Javan cannot credibly assert that she did not know

it was illegal to defraud health insurers. Id. at 941 (stating that “bill[ing] for

services not rendered – in common parlance, theft,” is a scheme “so bold and

simple that no reasonable person could have thought it lawful”).

         Nor did the district court err by issuing Instruction No. 28. Contrary to

Javan’s characterization of this instruction, it does not instruct the jury that Javan

broke the law simply by working as a paid patient recruiter or invite the jury to

convict on that basis. Instead, the instruction specifically notes that Javan has not

been charged with violation of any law prohibiting patient recruiting and instructs

the jury that patient recruiting alone cannot support a conviction for health care

fraud.

                                            IV.

         Finally, we reject Javan’s argument that the district court erred at sentencing.

We review for clear error both “[a] factual finding that a defendant obstructed

justice,” United States v. Garro, 517 F.3d 1163, 1171 (9th Cir. 2008), and “the

district court’s determination of the amount of loss attributable to a defendant for


                                             5
sentencing,” United States v. Peyton, 353 F.3d 1080, 1089 (9th Cir. 2003),

overruled on other grounds by United States v. Contreras, 593 F.3d 1135, 1136

(9th Cir. 2010) (en banc) (per curiam). We review a restitution order for abuse of

discretion, United States v. Riley, 335 F.3d 919, 931 (9th Cir. 2003), and any

factual findings underlying such an order for clear error, United States v. Foreman,

329 F.3d 1037, 1039 (9th Cir. 2003).

      The district court did not clearly err in applying a two-level enhancement for

obstruction of justice pursuant to U.S.S.G. § 3C1.1. Javan’s arguments to the

contrary presume that the district court based its enhancement solely on the fact

that Javan made a false statement to Agent Murdoch about compensation from

VMC. However, the district court concluded that Javan obstructed justice by

informing her co-schemers of the FBI’s investigation, not merely by lying to Agent

Murdoch. This factual finding was not clearly erroneous because the Government

presented evidence that Javan notified VMC of the FBI’s investigation and that her

tip led to VMC’s closure and the destruction of its records.

      Nor did the district court err in applying a sixteen-level enhancement for loss

exceeding $1 million. The district court’s finding that Javan was responsible for

the entire $1,149,140 loss was not clearly erroneous. A defendant is responsible

for the amount of loss resulting from “all reasonably foreseeable acts and


                                          6
omissions of others in furtherance of the jointly undertaken criminal activity.”

U.S.S.G. § 1B1.3(a)(1)(B). As discussed above, the Government presented ample

evidence that Javan was aware that VMC operated a large-scale services-not-

performed insurance fraud.

       Finally, the district court did not err by failing to explain why it chose not to

apportion Javan’s restitution liability under 18 U.S.C. § 3664(h). See United States

v. Mills, 991 F.2d 609, 611 (9th Cir. 1993) (holding prior to the Mandatory Victim

Restitution Act, that a district court deciding whether to award restitution to a

victim was “not required to make findings of fact or even to discuss the [relevant

statutory] factors on the record” (internal citations omitted)); cf. United States v.

Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc) (“The district court need not

tick off each of the [relevant statutory] factors to show that it has considered them.

We assume that district judges know the law and understand their obligation to

consider all of the [relevant statutory] factors . . . .”).

       AFFIRMED.




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