United States v. Vishnu Meda

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0298p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

│ Nos. 13-2598/2599

v. │

>

│

VISHNU PRADEEP MEDA (13-2598); MEHRAN │

JAVIDAN (13-25990, │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:11-cr-20052—Denise Page Hood, District Judge.

Argued: October 6, 2015

Decided and Filed: December 23, 2015

Before: COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: Brandy Y. Robinson, LEGAL AID & DEFENDER ASSN., INC., Detroit,

Michigan, for Appellant in 13-2598. Jonathan I. Edelstein, LAW OFFICE OF ALAN ELLIS,

New York, New York, for Appellant in 13-2599. Ross B. Goldman, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Brandy Y.

Robinson, LEGAL AID & DEFENDER ASSN., INC., Detroit, Michigan, for Appellant in 13-

2598. Jonathan I. Edelstein, LAW OFFICE OF ALAN ELLIS, New York, New York, for

Appellant in 13-2599. Ross B. Goldman, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellee.

1

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OPINION

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BERNICE BOUIE DONALD, Circuit Judge. This is a consolidated appeal. Vishnu

Pradeep Meda and Mehran Javidan were tried jointly and convicted on multiple charges arising

from a Medicare scam. On appeal, Vishnu Pradeep Meda argues that his conviction violated the

Fifth Amendment’s Double Jeopardy Clause and that he was subjected to prosecutorial

vindictiveness for refusing to plead guilty and asserting his right to a jury trial in prior case.

Mehran Javidan raises multiple issues for review. However, each issue falls into one of the

following categories: (1) improper evidentiary rulings, or (2) sentence calculation errors.

For the reasons set forth below, we AFFIRM both convictions.

I. INTRODUCTION

Mehran Javidan (“Javidan”) and Vishnu Pradeep Meda (“Meda”) worked together at

Acure Home Care (“Acure”). Javidan, as a part-owner, handled the daily operations. Meda

worked for Acure as a physical therapist.

In mid-2008, Javidan approached her friend Muhammed Shahab (“Shahab”) for help

entering the home-health business. At that time, Shahab was involved with at least two

fraudulent home-health agencies—Patient Choice and All American.1 Shahab allowed Javidan

to shadow him, and it was during this time that she learned the fraudulent scheme that she would

later duplicate.

In November 2008, Javidan, Shahab, and two other individuals purchased Acure.

Javidan was a twenty-percent owner of Acure. However, for all intents and purposes, she

managed the business. She signed Acure’s Medicare application and maintained payroll. She

was also the only person with signature authority on Acure’s bank account and, most

importantly, was solely responsible for Acure’s Medicare billing decisions.

1

On September 17, 2009, federal authorities executed a search warrant on Patient Choice and All

American. Subsequently, they were shut down.

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Javidan illegally recruited patients to Acure two different ways. First, she paid

“kickbacks” to corrupt physicians in exchange for referrals. Second, she hired “marketers” to

recruit patients by offering Medicare beneficiaries cash or prescription medications in exchange

for their Medicare numbers and signatures on various blank Medicare forms. After obtaining the

beneficiaries’ information, Acure’s employees completed the necessary documents and

submitted fraudulent reimbursement forms to Medicare for services that were either unnecessary

or never rendered. Many of the recruited patients were not homebound and/or never received

care.

Javidan hired Meda to be a physical therapist at Acure. Meda participated in the fraud at

Acure by signing revisit notes for patients that he did not visit. He also told Javidan which

patients were not homebound and which patients demanded money in exchange for their

Medicare information.

The government filed a sealed indictment on February 3, 2011, charging Javidan and

Meda with health care fraud conspiracy under 18 U.S.C. § 1347, and one count of conspiracy to

receive kickbacks under 18 U.S.C. § 371.2 On November 29, 2012, the grand jury retuned an

eleven count superseding indictment.

At trial, Javidan called four witnesses and testified herself. She asserted that she did not

participate in any fraudulent activity and that she was generally unaware of the fraudulent

business practices at Acure. Meda called no witnesses. The jury found both Javidan and Meda

guilty.3 Javidan and Meda were sentenced to terms of 65 and 46 months of imprisonment,

respectively. The pair timely appealed.

II. DOUBLE JEOPARDY

Meda contends that the government’s prosecution of him in this case violated his right to

be free from double jeopardy under the Fifth Amendment. He argues that the Patient Choice/All

American conspiracy and the Acure conspiracy were, in fact, one conspiracy. If that were the

case, once he was acquitted in the Patient Choice/All American case, the government was

2

The indictment also charged a third individual, Ram Naresh Rajulapati. He pled guilty before trial.

3

Javidan was convicted on Counts 1,2,4,5,7,9, and 11. Meda was convicted on Counts 1,2,4,7, and 9.

Nos. 13-2598/2599 United v. Meda, et al. Page 4

constitutionally estopped from indicting him in this case. Although a close call, for the reasons

detailed below, we hold that the indictment in this case did not violate the Fifth Amendment’s

Double Jeopardy Clause.

A. FACTS

In January 2010, the government charged Meda with conspiracy to commit health care

fraud at Patient Choice and All American. The indictment alleged that the conspiracy lasted

from August 2007 to September 2009. In that case, the government contended that Meda

fraudulently completed Medicare documents that falsely indicated that he provided care. The

government further alleged that those documents played a major role in Patient Choice and All

American submitting approximately $14.5 million in fraudulent claims to Medicare. In October

2012, a jury acquitted Meda.

In November 2012, the government filed charges in this case against Meda alleging that

he had continued his fraudulent Medicare practices at Acure. In many respects, the conduct

alleged in the Acure indictment mirrored the conduct alleged in the Patient Choice/All American

indictment. Meda moved to dismiss the indictment on double jeopardy grounds, arguing that the

Acure and Patient Choice/All American conspiracies were, in fact, only one conspiracy. The

district court denied Meda’s motion.

B. ANALYSIS

We review de novo the district court’s denial of a motion to dismiss a conspiracy charge

on double jeopardy grounds. United States v. Wheeler, 535 F.3d 446, 449 (6th Cir. 2008);

United States v. WRW Corp., 986 F.2d 138, 140 (6th Cir. 1993).

The Double Jeopardy Clause of the Fifth Amendment commands that no person shall “be

subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.

“Under this Clause, once a defendant is placed in jeopardy for an offense, and jeopardy

terminates with respect to that offense, the defendant may neither be tried nor punished a second

time for the same offense.” Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003). The Double

Jeopardy Clause “serves principally as a restraint on courts and prosecutors.” Brown v. Ohio,

432 U.S. 161, 165 (1977).

Nos. 13-2598/2599 United v. Meda, et al. Page 5

The Double Jeopardy Clause “protects against a second prosecution for the same offense

after acquittal.” Brown, 432 U.S. at 165. “In a conspiracy case, it is the agreement which forms

the nucleus of the offense.” United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir. 1983).

“Therefore, a determination of whether the government can prosecute on more than one

conspiracy rests on whether there exists more than one agreement.” Id.

In conspiracy cases, we determine whether the government violated the Double Jeopardy

Clause by analyzing the “totality of the circumstances” utilizing the following five factors:

(1) the time period covered by the two alleged conspiracies;

(2) the identity of the persons alleged to be coconspirators;

(3) the statutory offenses charged in the indictments;

(4) the overt acts charged by the government or any other description of the offenses

charged which indicates the nature and scope of the activity the government

sought to punish in each case; and

(5) the places where the events alleged as part of the conspiracy took place.

Id. “Where several of these factors differ between the conspiracies, the conclusion follows that

the alleged illegal conspiracies are separate and distinct offenses.” Id. at 1256-57.

With respect to the first factor, the record illustrates that both alleged conspiracies took

place during different time periods. The operative indictments indicate that the Patient

Choice/All American conspiracy took place from August 2007 through September 2009, while

the conspiracy in this case occurred between March 2009 through November 2010. Although

there was an overlap of approximately six months, the time period in the Acure indictment did

not completely subsume the Patient Care/All American indictment. Such a small overlap

suggests that these were two distinct conspiracies. See Sinito, 723 F.2d at 1257 (stating that an

overlap of ten months was not indicative of one conspiracy); see also United States v. Inmon,

594 F.2d 352, 354 (3d Cir. 1979) (opining that time frames and personnel can overlap in separate

criminal agreements). Also tilting this factor in the government’s favor is the fact that Meda

Nos. 13-2598/2599 United v. Meda, et al. Page 6

stopped receiving checks from Patient Choice and All American in September 2009, while he

received his first check from Acure in August 2009, resulting in an overlap of only two months.

Turning to the identity of the coconspirators, we find that this factor also weighs in the

government’s favor. Under this factor, the relevant question is not whether the same persons

were actually charged in each indictment, but rather whether the same persons were involved in

the activities charged under each indictment, unindicted persons included. Wheeler, 535 F.3d at

451 (citing United States v. DeCologero, 364 F.3d 12, 19 (1st Cir. 2004)). In his brief, Meda

correctly identified physicians and marketers who participated in both conspiracies. However,

many of those individuals played minor roles in each conspiracy and were not “central

characters” in either conspiracy. See United States v. El-Mezain, 664 F.3d 467, 547 (5th Cir.

2011) (stating that if the central figures are different, or serve different functions, it is less likely

that there is a single agreement). Shahab was the central character in the Patient Choice/All

American conspiracy, and Javidan was the central character in the Acure conspiracy, as she ran

the day-to-day operations and made all the Medicare decisions. Unlike at Patient Choice and All

American, Shahab was not actively involved in Acure’s business. He was merely a part owner.

Moreover, unlike Shahab, who played a passive role in the Acure conspiracy, Javidan played no

role at all in the Patient Choice/All American conspiracy. Since the role played by the two

central characters in each respective conspiracy was “quite different,” in the case of Shahab, and

non-existent, in the case of Javidan, we find that this factor narrowly weighs in the government’s

favor. See id.

The government correctly concedes that the offenses charged and the location of the

conspiracies factors favor Meda. Meda was charged for the exact same offenses in both

indictments. Both conspiracies took place in the same office building, albeit in separate suites.

Accordingly, we agree with the government and find that the offenses charged and location of

the conspiracies factors weigh in Meda’s favor.

As to the overt acts charged by the government, we find that the government indicted

different acts in each respective conspiracy. Meda argues that both conspiracies were “part of a

larger, unified conspiracy.” See Sinito, 723 F.2d at 1258. However, in the present case, the

government indicted the Medicare fraud that took place at Acure, not Patient Choice and All

Nos. 13-2598/2599 United v. Meda, et al. Page 7

American. Although the second indictment charged Meda with performing the same fraudulent

acts in both cases, that does not change the fact that in the previous case the government

attempted to stop Medicare fraud at Patient Choice and All American, and in the present case the

government sought to stop the Medicare fraud at Acure. Further illustrating this point is the fact

that when Patient Choice and All American were shut down after federal authorities served a

search warrant on their respective business premises, Acure continued to operate.

To conclude, two factors weigh in Meda’s favor (location of the offenses and statutory

offenses charged), and the remaining three factors weigh in the government’s favor (time,

persons acting as co-conspirators, and the overt acts charged). The test calls for us to make a

determination based on the totality of the circumstances utilizing the previously analyzed five

factors. Notwithstanding the two factors that weigh in Meda’s favor, we are more persuaded by

the three that support a finding that Meda’s indictment in this case did not violate the Fifth

Amendment’s Double Jeopardy Clause.

III. PROSECUTORIAL VINDICTIVENESS

In his brief, Meda asserts that the government’s decision to indict him in this case

subjected him to prosecutorial vindictiveness. For the reasons detailed below, we disagree.

A. FACTS

More than a year after trial, Meda moved to dismiss the indictment on prosecutorial

vindictiveness grounds. In his pro se motion, Meda argued that the prosecutors indicted him to

retaliate against him for refusing to plead guilty in the Patient Choice/All American conspiracy.

He complained that the prosecutors were fully aware of his alleged fraudulent conduct at Acure

at the time they decided to indict him for his conduct in the Patient Choice/All American

conspiracy. However, instead of charging Meda for his alleged crimes at Acure in the Patient

Choice/All American indictment, the prosecutors opted to “lie in wait” and indict him for his

conduct at Acure only if he was not convicted or refused to plead guilty in the Patient Choice/All

American case. Such conduct, Meda argued was improper and subjected him to prosecutorial

vindictiveness. Because the motion was filed after Meda filed his notice of appeal, the district

Nos. 13-2598/2599 United v. Meda, et al. Page 8

court determined that it did not have authority to decide the motion and denied it on waiver

grounds.

B. ANALYSIS

Normally, we review a district court’s decision not to dismiss an indictment for

prosecutorial vindictiveness for abuse of discretion. United States v. LaDeau, 734 F.3d 561, 565

(6th Cir. 2013). In this case, however, Meda’s motion was untimely. See Fed. R. Crim. P.

12(b)(3). Therefore, we review the district court’s decision for plain error. See United States v.

Soto, 794 F.3d 635, 655 (6th Cir. 2015). There are four parts to plain-error review. First, there

must be an error or defect that has not been intentionally relinquished or abandoned. Id. Second,

the legal error must be clear or obvious, rather than subject to reasonable dispute. Id. Third, the

error must have affected the appellant's substantial rights. Id. Fourth, if the first three prongs are

satisfied, this court has the discretion to remedy the error—discretion which ought to be

exercised only if the error seriously affects the fairness, integrity or public reputation of judicial

proceedings. Id.

A showing of vindictive prosecution requires (1) an exercise of a protected right; (2) a

prosecutorial stake in the exercise of that right; (3) unreasonableness of the prosecutor's conduct;

and (4) the intent to punish the defendant for exercise of the protected right. United States v.

Suarez, 263 F.3d 468, 479 (6th Cir. 2001).

Meda argues that the government indicted him in the Acure conspiracy because he

refused to plead guilty and was acquitted in his prior case. (Appellant Br. 20.) This assertion is

wholly unsupported by the record. Nothing in the record suggests that the government had a

retaliatory motive when deciding to indict Meda in this case. Instead, the record reflects that the

government indicted Meda solely because of his conduct at Acure. Importantly, Meda does not

cite to any evidence supporting his allegations, as he relies only on his interpretation of the

sequence of events that led to his indictment in this case. Without such evidence, we are not at

liberty to speculate about what drove the government to bring charges in this case. We also

cannot assume that the government intentionally withheld charges against Meda for improper

purposes in the Patient Choice/All American conspiracy case.

Nos. 13-2598/2599 United v. Meda, et al. Page 9

In the end, since an indictment was returned, we must presume that Meda’s charges were

supported by probable cause, and thus it was within the government’s discretion to pursue them

further. See Suarez, 263 F.3d at 485. Meda has offered no evidence to rebut this presumption.

Accordingly, we need not proceed further, as his claim is without merit.

IV. COCONSPIRATOR STATEMENTS

Javidan argues that the district court committed reversible error by improperly admitting

a number of statements pursuant to the coconspirator hearsay exception. For the reasons detailed

below, we disagree.

In reviewing a trial court’s evidentiary determinations, “this court reviews de novo the

district court’s conclusions of law, e.g., the decision that certain evidence constitutes hearsay,

and reviews for clear error the court’s factual determinations that underpin its legal conclusions.”

United States v. Payne, 437 F.3d 540, 544 (6th Cir. 2006) (quoting United States v. McDaniel,

398 F.3d 540, 544 (6th Cir. 2005)). “This court has noted that ‘[t]his standard is consistent with

the Supreme Court’s admonition in General Electric Co. v. Joiner, 522 U.S. 136, 142 (1997),

that we review evidentiary determinations for abuse of discretion, because it is an abuse of

discretion to make errors of law or clear errors of factual determination.’” Payne, 437 F.3d at

544 (quoting General Electric Co., 522 U.S. at 142).

The government asserts that Javidan failed to object to the testimony in dispute;

therefore, we should review the district court’s evidentiary rulings for plain error. Fed. R. Evid.

103(a)(2); see, e.g. United States v. Arnold, 486 F.3d 177, 193 (6th Cir. 2007). More precisely,

the government argues that Javidan’s objections were not specific enough to preserve this issue

for appeal. (Appellee Br. 22.) Although very detailed objections were not provided, as she

merely stated the rule of evidence that she believed the testimony would violate, when Javidan’s

counsel did object, her objections were sufficient to “bring into focus the precise nature of the

alleged error.”4 United States v. Estevez Antonio, 311 F. App’x 679, 681 (4th Cir. 2009).

4

Javidan’s counsel failed to object to multiple evidentiary errors that she alleges were made by the district

court. For those errors, the government is correct, we review for plain error. See United States v. Arnold, 486 F.3d

177, 193-94 (6th. Cir. 2007).

Nos. 13-2598/2599 United v. Meda, et al. Page 10

The requirements for admitting statements under Rule 801(d)(2)(E) are well established.

“In order for a statement to be admitted under Rule 801(d)(2)(E), the offering party must prove

by a preponderance of the evidence that the conspiracy existed, that the defendant was a member

of the conspiracy, and that the coconspirator’s statements were made in furtherance of the

conspiracy.” United States v. Pike, 342 F. App'x 190, 193 (6th Cir. 2009) (citing United States v.

Young, 553 F.3d 1035, 1045 (6th Cir. 2009)).

At the outset, we note that Javidan does not argue, on appeal, that the conspiracy did not

exist. Instead, she argues that district court improperly allowed into evidence statements that

were made by individuals who were not her coconspirators. As stated above, we usually review

that issue for abuse of discretion, because it requires review of the factual determinations of the

district court—i.e. the district court’s decision as to whom were Javidan’s coconspirators. See

Payne, 437 F.3d at 544. In her brief, Javidan specifies five instances, where she argues, that the

district court improperly allowed Shahab to relay statements that were not made by her

coconspirators.

First, Javidan contends that the government asked Shahab to testify about a conversation

between him and Dr. Raval, who Javidan argues was not one of her coconspirators. Specifically,

Javidan takes issue with the following exchange:

Prosecutor: Did Dr. Raval tell you what he wanted from the patients in order to --

why he wanted the patients to come over?

Meda’s counsel: Objection as to hearsay, Your Honor.

Prosecutor: This is a co-conspirator statement in furtherance …

Javidan’s counsel: Yes, I will have an ongoing objection to all of this.

The court: No, overruled.

Prosecutor: Did Dr. Raval tell you why he wanted the patients sent to his clinic?

Shahab: Because he wanted to bill Medicare.

When making Rule 801(d)(2)(E) rulings, typically a district court would be required to

specifically find that the declarant was a member of the conspiracy in the record as part of its

Enright findings. See United States v. Enright, 579 F.2d 980, 985 (6th Cir. 1978); see also

United States v. Vinson, 606 F.2d 149, 152-53 (6th Cir. 1979) (providing the three alternative

methods by which a district court may make Enright findings). Interestingly, neither party’s

Nos. 13-2598/2599 United v. Meda, et al. Page 11

brief cites to a place in the record showing that the district court made those findings. In the

past, we have ordered a remand when the district court failed to make Enright findings. See

United States v. Castro, 908 F.2d 85, 91 (6th Cir. 1990) (“It is error for the trial court to have

failed to make the required Enright determination, and therefore this court REMANDS the case

for resolution of the limited issue involved and retains jurisdiction over this case pending the

district court's finding”). However, remand is unnecessary if we can “conclude with confidence”

that the government met its burden in satisfying Rule 801(d)(2)(E)’s prerequisites by a

preponderance of the evidence. United States v. Martinez, 430 F.3d 317, 328 (6th Cir. 2005)

(citing United States v. Moss, 9 F.3d 543, 549 (6th Cir. 1993)).

There is sufficient evidence in this record to support the district court’s decision to

overrule Javidan’s objection. As Shahab’s direct examination continued, he stated that Dr. Raval

provided Acure with its initial patients. (Page ID. # 1655.) Additionally, Shahab went on to

explain that Dr. Raval requested $500.00 per patient, illustrating that Dr. Raval was aware of and

complicit in the Medicare fraud at that was being perpetrated at Acure. (Page ID. # 1655.) Thus,

we can “conclude with confidence” that the government met its burden of proving that Dr. Raval

was one of Javidan’s coconspirators.

Second, Javidan argues that the district court improperly allowed Shahab to respond to

the government’s question asking him to state whether he had “heard from [anybody] whether

Mr. Meda was doing his own revisit notes - -.” (Page ID # 1612.) Javidan also takes issue with

the government’s question asking Shahab how he became aware of the fact that the therapists

were not doing their own revisit notes. (Page ID # 1614.) Meda’s counsel objected to both

questions; Javidan’s counsel only objected to the second question. (Page ID # 1612-13.)

As to the first question, no responsive testimony was provided. Thus, we need not review

it further. With regard to the second question, Shahab responded, somewhat confusingly, stating

that,

“My administrator Akhram Asrof has specified many times that I'm getting the

notes and do not are given writing to show me I have seen that and being the

owner also and that is why he has decided to not to use that therapist and start

separately do in - -.”

Nos. 13-2598/2599 United v. Meda, et al. Page 12

(Page ID # 1614.) Presumably, this testimony was introduced to substantiate Shahab’s previous

assertion that he knew Meda was not completing his own revisit notes, as is required by

Medicare’s billing policy.

Like Javidan’s first claim of error, our review of the record reveals that there is sufficient

evidence to allow us to “conclude with confidence” that Akhram Asrof was one of Javidan’s

coconspirators. Shahab affirmed that Akhram Asrof was “one of the people [who helped] submit

… false billings to Medicare.” Therefore, although the district court did not make Enright

findings, Shabab’s testimony was not improperly admitted.

Third, Javidan argues that the district court improperly allowed Shahab to testify about

conversations he had with marketers, specifically an individual named Mr. Shannon, whom

Patient Choice had employed, but later was employed by Javidan. Javidan takes issue with the

following exchange:

Prosecutor: Were the marketers continuing to bring patients in the same way you

described as from Patient Choice?

Shahab: Exactly same way.

Prosecutor: And were they discussing that with you?

Shahab: Marketers?

Prosecutor: Yes?

Shahab: Yes, because they know me very well, I have good relationship with

them, too.

Meda’s counsel: Objection, Your Honor, I think there needs to be an

identification of the marketers, if they’re part of the co-conspiracy. I’m sorry,

Judge, I’ll back up. It is a hearsay objection unless it is co-conspirators he is

talking about, but if it is co-conspirators, then I think the Government needs to

provide what marketers he is hearing what information.

The court: Please rephrase.

Prosecutor: Can you list the marketers that Acure began to employ that you had

previously employed?

Shahab: That was Chris Collins has gone, Shannon has gone, Curtis Mallory has

gone. Josine Williams, almost every one.

Prosecutor: Did you discuss with Mr. Shannon how they got patients?

Shahab: You mean with myself and Shannon?

Nos. 13-2598/2599 United v. Meda, et al. Page 13

Prosecutor: Yes?

Shahab: Yes. Definitely. And I know everything how he gets the patient.

Prosecutor: How does he get them?

Shahab: He goes to the senior citizen building or bring all the patients to in his

apartment and he calls the doctor to come and see and then give the money to the

patients and give the referral and everything is signed and bring the package to the

home health care.5

(Page ID # 1629-31.)

Contrary to Javidan’s assertion, the record clearly reveals that Mr. Shannon was her

coconspirator. Prior to his employment at Acure, Shahab employed Mr. Shannon at Patient

Choice. Both positions required him to help facilitate Medicare fraud. In fact, that was the basis

of Shahab’s testimony about Mr. Shannon. It is not difficult to glean from the record that he was

a crucial member of the Acure conspiracy. Accordingly, we “conclude with confidence” that

Mr. Shannon, like every other marketer employed at Acure, was one of Javidan’s coconspirators.

Fourth, Javidan argues that the district court should not have allowed Shahab to testify

about a number of statements made by Dr. Aly, who allegedly received illegal per-patient

referral payments from Acure.6 According to Shahab, Dr. Aly said that “I will make sure to see

your patients first and you will be on priority and I will need $100.00 each for each patient to be

seen and give you a referral.” (Page ID # 2191.) Like Javidan’s previous claims of error,

Shahab’s testimony sufficiently established that Dr. Aly was one of Javidan’s coconspirators.

Shahab chronicled his interactions with Dr. Aly and explained how Dr. Aly accepted numerous

illegal kickback payments from Javidan. From Shahab’s testimony, we gather that Dr. Aly was

an integral part of the Acure conspiracy. Acure’s Medicare fraud scheme could not have

functioned without rogue physicians like Dr. Aly, as they initiated the fraud process by

diagnosing healthy individuals as homebound, which, in turn, allowed Acure to submit

fraudulent invoices to Medicare.

Lastly, Javidan takes issue with the district court’s decision to allow Shahab to testify

about why John Collins (Meda’s former employer) discharged Meda. (Appellant Br. 7.) Meda’s

5

Javidan’s counsel neglected to object. Thus, we review for clear plain error. Arnold, 486 F.3d at 193-94.

6

Javidan’s counsel neglected to object. Thus, we review for clear plain error. Arnold, 486 F.3d at 193-94.

Nos. 13-2598/2599 United v. Meda, et al. Page 14

counsel objected, arguing that John Collins was not a coconspirator.7 (Page ID # 2219.) In

response, the government asserted that the testimony was not hearsay because it was only offered

to prove its effect on Javidan. (Page ID # 2219.) To clarify, the government did not argue that

John Collins was a coconspirator. Instead, it argued that Shahab’s testimony was not hearsay,

and thus was not subject to the coconspirator exception to the rule against hearsay.

We conclude that the district court’s ruling was correct, as Shahab’s testimony was not

hearsay. The government did not offer the testimony to prove that John Collins discharged Meda

for the reasons Shahab stated. It offered the testimony to prove the impact it had on Javidan’s

state of mind prior to hiring Meda. Put differently, the government offered the testimony to

prove that Javidan had reason to know why Meda was discharged, not to prove that Meda was

actually discharged for the reasons stated by John Collins. Since the “significance [of the

testimony in dispute] lies entirely in the fact that the words were spoken,” the testimony was not

hearsay. See United States v. Hathaway, 798 F.2d 902, 905 (6th Cir. 1986) (discussing the

definition of hearsay).

A final note. Although we disagree with all five of Javidan’s claims of error, we also

find that, even if the district court’s rulings were incorrect, any error would be harmless.

Evidentiary errors are subject to harmless error review. United States v. Kilpatrick, 798 F.3d

365, 378 (6th Cir. 2015). Under harmless error review, any “error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.” Id. Shahab’s disputed

testimony did little to strengthen the government’s claim against Javidan. If the disputed

testimony hurt anyone’s defense, it was Meda’s. In any event, notwithstanding Shahab’s

disputed testimony, the government presented enough evidence to convict Javidan without the

disputed testimony. Accordingly, any evidentiary ruling mistake the district court may have

made was harmless.

7

Javidan’s counsel neglected to object. Thus, we review for clear plain error. Arnold, 486 F.3d at 193-94

Nos. 13-2598/2599 United v. Meda, et al. Page 15

V. PRECULUSION OF SASSAN KHOUBYARI’S TESTIMONY

Javidan asserts that the district court’s decision to preclude, as hearsay, her husband,

Sassan Khoubyari (“Khounyari”), from testifying about an alleged meeting he had with Acure’s

attorneys constituted reversible error. We disagree.

A. FACTS

During the government’s direct examination of Shahab, he testified about a February

2009 meeting with Javidan, Khoubyari, and another individual. At the meeting, Shahab

discussed how his companies, Patient Choice and All American, along with Javidan’s company,

Acure, would create fraudulent marketer contracts and invoices to give the appearance that the

marketers were paid hourly, as opposed to per patient.8

Khoubyari testified in Javidan’s defense, and he stated that Javidan was not present at the

meeting. He alleged that at this meeting he met with attorneys who provided him with legal

advice, which he relayed to Javidan. The government objected after Javidan’s counsel asked him

to detail the advice he relayed to Javidan. The district court sustained the government’s

objection.

Subsequently, Javidan’s counsel submitted a memorandum of law that argued that

Khoubyari should be allowed to testify about his version of what was said at the meeting.

Specifically, it argued that his testimony should be allowed because (1) Javidan had a right to

impeach Shahab’s testimony about the meeting, (2) Javidan’s Confrontation Clause rights would

be violated, and (3) the proposed testimony was not hearsay.

The government responded, arguing that (1) “Javidan could not impeach an earlier

witness by offering hearsay testimony through a later witness,” (2) Javidan had the full ability to

exercise her right to confront Shahab, and (3) Khoubyari’s proposed testimony would constitute

inadmissible hearsay.

8

In February 2009 the State of Michigan asked Patient Care to provide its marketer contracts, which

allegedly prompted the meeting.

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In a written order, the district court ruled that Khoubyari’s proposed testimony was not

admissible under Federal Rule of Evidence 802 or 608(b) and that prohibiting Khoubyari’s

proposed testimony would not offend the Confrontation Clause.

B. ANALYSIS

When examining a district court’s evidentiary determinations, we review de novo

conclusions of law and review for clear error any factual determinations that underpin the district

court’s legal conclusions. United States v. Baker, 458 F.3d 513, 516 (6th Cir. 2006). As to the

district court’s hearsay determination, we review that decision de novo because it calls for us to

decide “whether evidence offered at trial constituted hearsay within the meaning of the Federal

Rules of Evidence.” See id. (quoting Field v. Trigg County Hosp., Inc., 386 F.3d 729, 735 (6th

Cir. 2004)).

In arguing that Khoubyari’s proposed testimony was not hearsay, Javidan states that the

testimony would prove “a different version of what [] Javidan did.” (Appellant Br. 26.)

Specifically, she goes on to propose that,

if a jury were to accept Mr. Khoubyari’s testimony that, rather than being about

falsification of invoices of backdating of contracts, the meeting featured attorneys

talking about the legal ways of paying marketers, then it would have a different

view of Ms. Javidan’s guilty knowledge than if it accepted Mr. Shahab’s version

of the meeting.

(Appellant Br. 26.)

Respectfully, we conclude that Javidan is mistaken. Proposing that the jury should

accept Khoubyari’s version of events, as opposed to Shahab’s, is an implicit admission that

Khoubyari’s testimony was offered to prove the truth of the matter it asserted. See Fed. R. Evid.

801(b). Javidan argues that she offered the testimony to prove her “state of mind.” (See

Appellant Br. 27.) But her brief makes clear that she put her husband on the stand to offer a

different version of the meeting than the one that was offered by Shahab. Therefore, the

proffered testimony was hearsay.

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We also find that even if this proffered testimony was not hearsay, the district court’s

decision not to admit it constituted harmless error. Due the abundance of incriminating evidence

against Javidan in the record, Khoubyari’s testimony would not have changed the outcome of the

trial. See McCombs v. Meijer, Inc., 395 F.3d 346, 358 (6th Cir. 2005) (“The harmless error

standard calls for reversal when the appellate court lacks a fair assurance that the outcome of a

trial was not affected by evidentiary error.”) (citations omitted).

VI. PRECLUSION OF SARAH KHAN’S TESIMONY

Javidan argues that the district court’s decision not to order the government to grant

immunity to one of her proposed witnesses, Sarah Khan (“Khan”) was a reversible error. Based

on her brief, it also appears that she is attempting to assert a witness-intimidation claim as well.

Due to the reasons explained below, we find that the district court’s decision not to order the

government to immunize Khan was correct and that her witness-intimidation claim is meritless.

A. FACTS

Shortly before trial, Javidan identified Sarah Khan (“Khan”), a patient data-entry

employee at Acure, as a potential witness. Sometime before Khan was identified as a potential

witness, the government alleged that it had learned that Khan was “engaged in fraud at Acure.”

The government suggested the district court appoint counsel for Khan so that Khan could be

advised of her rights, including her Fifth Amendment right not to testify. Against Javidan’s

protest, the district court provided counsel for Khan. The government made Khan’s counsel

aware of the incriminating evidence it had against Khan. Not surprisingly, Khan followed her

counsel’s advice and decided to interview or testify only in exchange for immunity, which the

government refused to provide. Javidan filed a motion requesting that the district court conduct

a hearing outside of the jury’s presence to determine if Khan’s testimony was admissible and

whether the government should be required to extend immunity to Ms. Khan. The district court

held a hearing outside the presence of the jury, in which the government proffered information it

considered inculpatory. The district court was satisfied “relative to her invocation of the right.”

Nos. 13-2598/2599 United v. Meda, et al. Page 18

B. ANALYSIS

We review the district court’s decision whether to allow Khan to take the stand after

being advised of her intention to invoke her Fifth Amendment right not to testify for abuse of

discretion. United States v. McAllister, 693 F.3d 572, 583 (6th Cir. 2012). Since Javidan did not

raise her witness intimidation claim in the district court, we review that claim for plain error.

United States v. Pierce, 62 F.3d 818, 831 (6th Cir. 1995).

Witness Intimidation

To establish a claim of witness intimidation, a defendant must present “government

conduct which amounts to substantial interference with a witness’ free and unhampered

determination to testify” and must prove that any inappropriate conduct was not harmless.

United States v. Stuart, 507 F.3d 391, 398 (6th Cir. 2007).

Javidan argues that the prosecutor’s improper conduct “drove Kahn off the stand.”

(Appellant Br. 31.) To support that argument, Javidan attempts to distinguish her case from this

court’s ruling in Davis v. Straub, 430 F.3d 281 (6th Cir. 2005). In Davis, after a defendant’s

witness was called to the stand, the prosecutor requested a side bar with the judge, where he

informed the court that the witness was a suspect and should be informed of his constitutional

rights. Id. at 287. After questioning the witness, the district court appointed counsel to advise

him of his rights. Id. On appeal, we found that the prosecutor’s conduct was not improper,

especially considering a prosecutor’s ethical obligations, which include,

Advis[ing] a witness who is to be interviewed of his or her rights against self-

incrimination and the right to counsel whenever the law so requires. It is also

proper for a prosecutor to so advise a witness whenever the prosecutor knows or

has reason to believe that the witness may be the subject of a criminal

prosecution.

Id. (citing the ABA Standards for the Administration of Criminal Justice § 3-3.2(b)).

Although the facts of Davis are virtually analogous to her case, Javidan contends that

since Davis was a habeas case its analysis should not apply, an assertion for which she cites no

authority. (Appellant Br. 31.) Regardless of the fact that Davis was a habeas case, our

determination with regard to the actions of the prosecutor are not limited to Davis, because the

Nos. 13-2598/2599 United v. Meda, et al. Page 19

government prosecutor in this case was bound by the same ethical obligations as the prosecutor

in Davis.

Javidan also attempts to distinguish her case from United States v. Stuart, 507 F.3d 391

(6th Cir. 2007). In Stuart, the defendant contended that the prosecutor’s references to perjury

charges caused him and two of his witnesses not to testify. Id. at 398. This court found that the

defendant’s assertions were unfounded and that the district court properly warned him about the

penalties of perjury, while informing him that the ultimate decision about whether to testify was

his own. Id. In fact, both the district court and prosecutor went out of their way to make sure

that the defendant knew he was not being threatened. See id.

Javidan argues that the district court in this case erred because, unlike the district court in

Stuart, Khan was not advised that the decision about whether to testify was her own. (Appellant

Br. 32.) Unlike the defendant in Stuart, Javidan does not contend that the government prosecutor

threatened Khan with a perjury charge. Thus, such a reminder was not required or warranted.

Lastly, Javidan alleges that the government prosecutor did not decide to “investigate”

Khan until she was put on her witness list. (Appellant Br. 33.) Javidan, however, was not privy

to the government’s plans. Nor, does she allege that she received this knowledge from someone

who was. What is undisputed is that the prosecutor possessed information that criminally

implicated Khan. Therefore, the prosecutor had an ethical obligation to act as she did. See

Davis, 430 F.3d at 287. Since Javidan has not identified any inappropriate government conduct,

her witness intimidation claim fails.

Failure to Grant Immunity

This court has long held that a district court is without authority either to grant immunity

to a witness who asserts his Fifth Amendment privilege against self-incrimination, or to force the

government to do so. United States v. Talley, 164 F.3d 989, 997 (6th Cir. 1999). However, we

have discussed two limited situations when such immunity may be warranted: if it is necessary

to enable a defendant to present an effective defense and/or where it is necessary to remedy

prosecutorial misconduct. Id.

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Under the prosecutorial-misconduct exception, due process requires an immunity grant

when the prosecution abuses its discretion by intentionally attempting to distort the fact-finding

process. Id. at 998. This court has acknowledged that this exception exists in other jurisdictions,

but we have yet to adopt the exception itself. See, e.g.,United States v. Allebban, 578 F. App’x

492, 505 (6th Cir. 2014). Javidan urges us to adopt it in this case. (Appellant Br. 36.) But, even

if we were inclined to explicitly adopt this exception, we could not do it in this case because, as

detailed above, the prosecutor did nothing improper.

The effective-defense exception is valid in the Sixth Circuit only if the government

selectively granted immunity to its own witnesses but denied immunity to the defendant's

witnesses. Id. (citing United States v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991)). To do

otherwise could deprive the defendant of a fair trial. Id. However, a defendant does not have an

authomatic right to have his or her witnesses immunized simply because the prosecution relies

on immunized witnesses to make its case. Id. Instead, the evidence must be so “egregiously

lopsided” that an unfair trial would otherwise take place. Id.

In this case, the government refused to grant immunity to one of Javidan’s witness, Khan.

Even if we were to entertain the proposition that Khan was prepared to testify effectively for

Javidan, it cannot be said that an unfair trial took place without her testimony. Moreover,

Javidan does not allege that the government relied upon immunized witnesses to make its case,

while refusing to immunize Khan. Thus, the “pick and choose” aspect of this claim is

nonexistent. Accordingly, we find that the district court did not err in refusing to grant immunity

to Khan.

Alternative Measures

Alternatively, Javidan argues that even if the district court decided not to grant Khan

immunity, it should have still allowed Khan to testify, but precluded the government from cross-

examining her about her alleged fraudulent acts or prevented the government from cross-

examining her completely. (Appellant Br. 37.) No citation was provided to support this

proposition. Thus, it need not be addressed. See Fed. R. App. P. 28(a)(8)(A).

Nos. 13-2598/2599 United v. Meda, et al. Page 21

Javidan also argues that the district court could have compelled Javidan to invoke the

Fifth Amendment privilege in front of the jury. (Appellant Br. 37.) She asserts that this

alternative would have posed no risk on appeal because “it was specifically requested by the

defense.” Id. She cites United States v. Sharpe, 996 F.2d 125, 129 (6th Cir. 1993), in support of

this contention. Her reliance in Sharpe is misplaced. Sharpe does not stand for the proposition

that a defendant can compel the trial court to commit appealable errors as long the defendant

promises not bring up the issue on appeal. The district court correctly decided this issue, see

United States v. Arnott, 704 F.2d 322, 324-25 (6th Cir. 1983), and was not obligated to oblige

Javidan’s request.

VII. ALLEGED SENTENCE CALCULATION ERRORS

Javidan argues that the district court committed multiple errors in calculating her

sentence. For the reasons explained below, we disagree.

A. FACTS

After the jury verdict, the probation department prepared a presentence investigation

report (“PSR”). The PSR specified that Javidan’s base level offense was 24, which was

calculated by totaling her base offense level of six, two levels for employing sophisticated

means, and 16 levels because her scheme resulted in a loss between $1 and 2.5 million. The PSR

also added four levels because Javidan was an organizer or leader of the scheme. This resulted in

a total offense level of 28, which yielded an advisory sentencing range of 78-97 months.

Javidan submitted a sentence memorandum that challenged the PSR’s monetary loss

calculation and the organizer-leader enhancement. With regard to the PSR’s monetary

calculation, Javidan argued that the government had not put forth sufficient evidence to prove

that all of Acure’s Medicare receipts were obtained via fraud. As to the organizer-leader

enhancement, she argued that Shahab clearly ran her business; thus, she should not be considered

the organizer or leader.

The district court adopted the PSR’s findings. Although it could have sentenced Javidan

to a term between 78-97 months, it chose to impose a sentence of 65 months.

Nos. 13-2598/2599 United v. Meda, et al. Page 22

B. ANALYSIS

Loss Calculation and Leadership Enhancement

We review a district court’s calculation of the “amount of loss” for clear error, but

consider the methodology behind it de novo. United States v. Washington, 715 F.3d 975, 984

(6th Cir. 2013). For loss calculation purposes, a district court need only make a “reasonable

estimate” of the loss. United States v. Mahmud, 541 F. App’x 630, 635 (6th Cir. 2013) (citation

omitted)

In determining the monetary loss, the government had to initially show by more than a

preponderance of the evidence the amount of the total loss. Id. at 636. The district court found

that “the Government more than met its burden that Acure was entirely a fraud.” (Page # ID

6371.) It based its finding on the testimony of multiple witnesses. (Page # ID 6371.)

Accordingly, the district court found that the $2.2 million figure produced in the PSR was

accurate. (Page ID # 6369.) Once the district court made this finding, the burden was on Javidan

to prove how much of her business was legitimate. See id. (“Once the Government met its

burden to prove the total amount, it was [the defendant’s] burden to prove ‘the specific value’ by

which the loss amount should have been reduced”). Javidan did not meet this burden, as she

neglected provide any evidence. (Page ID # 6409-11.) Therefore, since Javidan did not meet her

burden and because the district court’s finding was supported by evidence in the record, we hold

that the district court’s loss calculation was a “reasonable estimate of the loss” and that no clear

error occurred. See Muhmud, 541 F.App’x. at 636.

Javidan contends that her business was not shown to be entirely fraudulent at trial,

because she offered witnesses who testified that some of her business was legitimate. (Appellant

Br. 44.) As shown above, the district court did not commit a clear error in deciding the loss

amount. Moreover, the district court’s methodology was also correct. See Muhmud, 541 Fed.

App’x. at 636. The district court provided Javidan an opportunity to produce evidence to prove

what amount of Acure’s Medicare business was legitimate, as is required by Muhmud when a

district court determines that an enterprise was completely fraudulent. Javidan failed to produce

any evidence. (Page ID # 6409-11.) Consequently, she is not allowed to use this court for a

second bite at the apple.

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Javidan also argues that she should not have been deemed a leader or organizer of

Acure’s fraud scheme. The Sentencing Guidelines provides for a four-level enhancement “if the

defendant was an organizer or leader of a criminal activity that involved five or more participants

of was otherwise extensive.” See U.S.S.G. § 3B1.1(a). As pointed out by the government in its

brief, Javidan had all the indicia of Acure’s leader/organizer in its Medicare fraud scheme. It is

undisputed that she was a part owner of Acure (an enterprise that the district court found to be

entirely fraudulent), that she signed Medicare’s enrollment form, and that she was the sole

signature authority on Acure’s bank accounts. Based on those facts alone, the district court did

not commit a clear error in finding her as leader/organizer.

Reasonableness of Sentence

The substantive reasonableness of a sentence is reviewed under an abuse of discretion

standard. United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). In reviewing for substantive

reasonableness, we must “take into account the totality of the circumstances, including the extent

of any variance from the Guidelines range.” Id. Importantly, a below-the-Guidelines sentence is

presumed not to be unreasonably severe. United States v. Curry, 536 F.3d 571, 573 (6th Cir.

2008).

In arguing that her sentence was not substantively reasonable, Javidan alleges that the

district court placed excessive weight on factors that lengthened her sentence. (Appellant Br. 52-

54.) Not only is that assertion not supported by the record, but the record reflects that the district

court took many of her mitigating factors into account when deciding to sentence her to shorter

term than the PSR recommended. Thus, her argument is without merit.

VI. CONCLUSION

Based on the foregoing, we AFFIRM Meda’s and Javidan’s convictions and also

AFFIRM Javidan’s sentence.