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NOT FOR PUBLICATION FEB 14 2012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
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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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