NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50016
Plaintiff-Appellee, D.C. No.
2:17-cr-00410-PSG-1
v.
KANAGASABAI KANAKESWARAN, MEMORANDUM*
M.D.,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, Chief District Judge, Presiding
Submitted October 6, 2020**
Pasadena, California
Before: M. SMITH and LEE, Circuit Judges, and CARDONE,*** District Judge.
Dr. Kanagasabai Kanakeswaran appeals his conviction on one count of
conspiracy to pay and receive illegal remunerations for health care referrals, in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
violation of 18 U.S.C. § 371, and four counts of receiving illegal remunerations for
health care referrals to Star Home Health Resources (Star), in violation of 42
U.S.C. § 1320a-7b(b)(1)(A). Kanakeswaran challenges the sufficiency of the
evidence against him on all counts, several of the district court’s evidentiary
rulings, and the district court’s entry of a judgment of forfeiture in the amount of
$509,662. We affirm.
Because the parties are familiar with the facts, we do not recount them here,
except as necessary to provide context to our ruling.
Claims of insufficient evidence are reviewed de novo. See United States v.
Sandoval-Gonzalez, 642 F.3d 717, 727 (9th Cir. 2011). Here, Chris Legaspi
testified that he personally delivered at least one kickback payment to
Kanakeswaran. The Government presented voluminous circumstantial evidence
that traced payments from Star’s internal records, through an intermediary, to
Kanakeswaran’s bank account. The Government also presented circumstantial
evidence sufficient to establish the elements of a conspiracy to receive kickbacks
for referrals through testimony from various participants in the scheme.
Consequently, there was sufficient evidence to convict Kanakeswaran on all
counts. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
A trial court’s decision to admit evidence is reviewed for abuse of discretion.
See United States v. Alvirez, 831 F.3d 1115, 1120 (9th Cir. 2016). With respect to
2
the Senatin spreadsheet, Kanakeswaran’s argument that the document was
inadmissible hearsay fails because it qualifies as a record of a regularly conducted
activity. Fed. R. Evid. 803(6).
When the trial court admits hearsay statements as co-conspirator statements,
its underlying factual determination that the statements were made in furtherance
of the conspiracy is reviewed for clear error. United States v. Shryock, 342 F.3d
948, 981 (9th Cir. 2013). However, if a defendant does not object to the testimony
at trial, its admission is reviewed under the plain error standard. United States v.
Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990). Kanakeswaran objected to the
testimony of Errol Lat, who recounted that Elaine spoke about Kanakeswaran’s
desire for higher kickback payments.
Elaine’s statement introduced through Errol’s testimony was both during and
in furtherance of the conspiracy. See United States v. Williams, 989 F.2d 1061,
1068 (9th Cir. 1993). The district court therefore did not abuse its discretion by
admitting Errol’s testimony containing Elaine’s hearsay statement. See United
States v. Tamman, 782 F.3d 543, 553 (9th Cir. 2015).
Kanakeswaran did not object to Elaine’s hearsay statements introduced
through the testimony of Legaspi, Tsarina Morales, and Vincent Senatin. Plain
error review therefore applies. All of these hearsay statements were during and in
furtherance of the conspiracy: Legaspi’s testimony that Elaine told him
3
Kanakeswaran needed to make more referrals because Star was paying him,
Morales’s testimony that Elaine complained about doctors wanting higher
kickback rates, and Senatin’s testimony that Elaine and Errol told him Star was
paying Kanakeswaran kickbacks advanced the common objective of continuing to
defraud Medicare. The district court therefore did not commit plain error in
admitting these statements. United States v. Marcus, 560 U.S. 258, 262 (2010).
Next, Kanakeswaran challenges the admission of bank teller receipts from
Star’s bank account based on lack of authentication and hearsay. The receipts
were seized during the execution of a search warrant, and a law enforcement agent
who seized them testified at trial regarding that seizure. The receipts were found in
Star’s office, stapled together in separate groups, and listed the last four digits of
Star’s bank account at Chase bank. They have the appearance and standard
features of regular teller receipts. The amounts in the bank teller receipts matched
the records obtained directly from the bank. Given these features, the receipts
were properly authenticated. Fed. R. Evid. 901(a), (b)(4); United States v. Tank,
200 F.3d 627, 630 (9th Cir. 2000). Furthermore, the receipts do not contain
inadmissible hearsay because, like the Senatin spreadsheet, they are records of a
regularly conducted activity.
Kanakeswaran also challenges the district court’s decision to admit evidence
showing Medicare’s total payments to Star on the basis of relevance and undue
4
prejudice. With respect to relevance, “[t]rial judges have ‘wide discretion’ in
determining whether evidence is relevant.” United States v. Alvarez, 358 F.3d
1194, 1205 (9th Cir. 2004) (quoting United States v. Long, 706 F.2d 1044, 1054
(9th Cir. 1983)). The overall Medicare payment evidence was relevant because it
helped contextualize Kanakeswaran’s role in the conspiracy. Furthermore,
exclusion of otherwise relevant evidence under Rule 403 is “an extraordinary
remedy to be used sparingly.” United States v. Mende, 43 F.3d 1298, 1302 (9th
Cir. 1995) (quotation omitted). The alleged prejudice to Kanakeswaran does not
warrant this extraordinary remedy.
Calculation of the amount of forfeitable money paid to defendant is a factual
finding reviewed for clear error. See United States v. Alcaraz-Garcia, 79 F.3d 769,
772 (9th Cir. 1996). “A factual finding is clearly erroneous only if it is illogical,
implausible, or without support in inferences that may be drawn from the record.”
United States v. Hinkson, 585 F.3d 1247, 1262–63. Because forfeiture is
essentially a sentencing enhancement, the Government bears the burden of proving
the amount subject to forfeiture by a preponderance of the evidence. Boyd v.
United States, 209 F. Supp. 3d 160, 166 (D.D.C. 2016); accord United States v.
Johnson, 540 F. App’x 573, 575–76 (9th Cir. Sept. 10, 2013); United States v.
Davis, 706 F.3d 1081, 1083 (9th Cir. 2013).
It was not an abuse of discretion for the district court to find that the
5
Government proved by a preponderance of the evidence that the spreadsheet
represented payments Kanakeswaran actually received. Senatin testified that the
amounts on the spreadsheet were what Elaine told Senatin would be paid to
Kanakeswaran. And circumstantial evidence such as the bank receipts and
Kanakeswaran’s cash deposits corroborated various amounts listed on the
spreadsheet. The Government met the preponderance of the evidence standard
with respect to the forfeiture amount.
For the foregoing reasons, we affirm the judgment of conviction and
forfeiture order of the district court.
6