                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 21 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50534

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00264-SJO-3
 v.

SHARETTA MICHELLE WALLACE,                       MEMORANDUM*
AKA Michele Wallace,

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   15-50535

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00264-SJO-5
 v.

EMILIA E. ZVEREV, AKA Mila Zverev,
AKA Emilia Zvereva,

              Defendant-Appellant.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
UNITED STATES OF AMERICA,                        No.    15-50549

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00264-SJO-1
 v.

STEVEN PROSHAK, AKA Yaroslav
Proshak,

              Defendant-Appellant.


                   Appeals from the United States District Court
                       for the Central District of California
                    S. James Otero, District Judge, Presiding

                     Argued and Submitted February 10, 2017
                              Pasadena, California

Before: TASHIMA, GRABER, and CHRISTEN, Circuit Judges.

      Defendants Sharetta Wallace, Emilia “Mila” Zverev, and Yaroslav “Steven”

Proshak appeal from their convictions and sentences for one count of conspiracy to

commit healthcare fraud, in violation of 18 U.S.C. § 1349, and five counts of

healthcare fraud, in violation of 18 U.S.C. § 1347. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      1.     We review defendants’ sufficiency of the evidence claim to determine

“whether, ‘after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the


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crime beyond a reasonable doubt.’” United States v. Rios, 449 F.3d 1009, 1011

(9th Cir. 2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The

government introduced ample evidence that the subject ambulance company,

ProMed Medical Transportation, Inc., transported Medicare beneficiaries for

whom ambulance transport was not medically necessary. The government also

introduced testimony from several witnesses that defendants instructed ProMed

employees to falsify ambulance “run sheets.” This evidence was sufficient for

reasonable jurors to find defendants guilty of conspiracy to commit healthcare

fraud and substantive healthcare fraud. See United States v. Rutgard, 116 F.3d

1270, 1280–81 (9th Cir. 1997) (describing sufficiency of the evidence standards

for healthcare fraud).

      2.     Defendants argue that the district court erred by excluding evidence

concerning the “special rule” in Medicare ambulance regulations, 42 C.F.R.

§ 410.40(d)(2), and declining to issue a jury instruction about the rule. See United

States v. McGeshick, 41 F.3d 419, 421 (9th Cir. 1994) (“Failure to instruct the jury

on an appropriate defense theory is a question of law reviewed de novo.”).

      The district court prevented defendants from misstating the law concerning

Medicare regulations, but the district court allowed defendants to present evidence

that they relied on the special rule and physician statements of medical necessity in


                                          3
support of their argument that they lacked the requisite mental state to commit

fraud. The court’s order did not prevent defendants from reading the text of the

rule to the jury during testimony. Additionally, the district court accurately

instructed the jury on one of the theories behind defendants’ special rule argument:

that if defendants had a good faith belief that a physician certification was

sufficient to establish medical necessity and allowed the ambulance transports in

question, they lacked the intent to defraud the government. The district court did

not improperly deny defendants the opportunity to present a full defense or err in

its instructions to the jury.

       3.     Defendants challenge numerous evidentiary rulings. “A district

court’s evidentiary rulings should not be reversed absent clear abuse of discretion

and some prejudice.” Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 462

(9th Cir. 2014) (en banc) (citation omitted). Having reviewed each of defendants’

evidentiary challenges, we find no error. The district court’s rulings did not

constitute an abuse of discretion, nor did defendants show prejudice.

       4.     Defendants argue that the government engaged in misconduct by:

1) interfering with Dr. Firooz Pak’s choice to testify; 2) making improper

statements in the presence of the jury about a witness working a “graveyard shift”;

and 3) making improper statements in the presence of the jury that led jurors to ask


                                           4
to rehear excerpts of defendants’ interviews with government agents. We review

de novo the district court’s refusal to dismiss an indictment for prosecutorial

misconduct. United States v. Spillone, 879 F.2d 514, 520 (9th Cir. 1989).

      Defendants’ first allegation of misconduct is most serious. The

government’s actions regarding Dr. Pak deeply concerned the district court, and we

assume without deciding that the government engaged in misconduct by

substantially interfering with Dr. Pak’s choice to testify. Nevertheless, the district

court presented defendants with the option of ordering the government to give Dr.

Pak immunity, and they did not call him to testify. Any misconduct by the

government did not prejudice defendants. The evidence of defendants’ guilt was

overwhelming. Cf. United States v. Vavages, 151 F.3d 1185, 1189–93 (9th Cir.

1998).

      5.     Finding no error, defendants’ cumulative error argument fails. See

United States v. Wilkes, 662 F.3d 524, 543 (9th Cir. 2011).

      6.     Defendants also argue that the district court erred in its loss and

restitution calculations. “We review estimates of loss for clear error.” United

States v. King, 257 F.3d 1013, 1025 (9th Cir. 2001). “The legality of an order of

restitution is reviewed de novo, and factual findings supporting the order are




                                           5
reviewed for clear error.” United States v. Luis, 765 F.3d 1061, 1065 (9th Cir.

2014) (quoting United States v. Brock-Davis, 504 F.3d 991, 996 (9th Cir. 2007)).

      In arriving at the loss and restitution calculation, the district court used the

lowest number offered by the government, which included only the amounts that

Medicare paid defendants for fraudulent dialysis transports, rather than the larger

amounts billed to Medicare. The district court relied on a government agent’s

declaration concerning thirteen Medicare beneficiaries transported by ProMed,

instead of on estimates concerning the percentage of transports that were

fraudulent. The district court did not clearly err in arriving at its calculation. See

United States v. Zolp, 479 F.3d 715, 718–19 (9th Cir. 2007).

      7.     Proshak argues that his sentence of 108 months was substantively

unreasonable. “The abuse of discretion standard applies to all sentencing

decisions, whether the sentence is inside the Guidelines range or outside of it.”

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The district

court relied on 18 U.S.C. § 3553 factors to sentence Proshak above the advisory

Guidelines range. The district court considered Proshak’s individual

characteristics, including his apparent lack of remorse and the way in which he

took advantage of employees during an economic downturn to compel them to




                                            6
commit fraud. The district court also considered the flagrant and protracted nature

of the offense. The sentence of 108 months was substantively reasonable.

      AFFIRMED.




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