Petition for Writ of Certiorari — Giam Nguyen, Anna Bagoumian, and Donovan Simmons, Petitioners v. United States

NO.

IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA

OCTOBER TERM 2019

GIAM NGUYEN,

ANNA BAGOUMIAN, and

DONOVAN SIMMONS

VS.

UNITED STATES OF AMERICA

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PETITIONERS

RESPONDENT

JOINT PETITION FOR WRIT OF CERTIORARI

CAUSE NO. 17-2063

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CAUSE NO. 4:13cr-578

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

STANLEY G.

SCHNEIDER

DAVID ADLER

SHAUN KHOJAYAN

SCHNEIDER &

McKINNEY, PC

DAVID ADLER, PC

Law Offices of Shaun

Khojayan & Associates

P.L.C.

440 LOUISIANA, SUITE

800

6750 West Loop S., Suite

120

515 S. Flower St.

HOUSTON, TEXAS 77002

BELLAIRE, TX 77401

LOS ANGELES, CA 90071

(713) 951-9994

(713) 666-7576

(310) 274-6111

ATTORNEY FOR

ATTORNEY FOR

ATTORNEY FOR

GIAM NGUYEN

DONOVAN SIMMONS

ANNA BAGOUMIAN

ISSUES PRESENTED FOR REVIEW

Petitioners, Nguyen and Simmons were doctors while Ms. Bagoumian worked

as a nurse in medical clinics. They were convicted in a series of Medicare fraud

related offenses. The medical clinics were created by two co-defendants who pled

guilty before trial. The defense was that they did not know the fraudulent nature of

the scheme and they had nothing to do with finding patients or billing.

The two co-defendants had been charged with a similar Medicare fraud scheme

in Arizona. In that scheme, the investigators concluded the medical professionals

employed in the clinics were dupes. One of the organizers of the scheme at issue who

pled guilty, Zayan “Mike” Pogosyan, at his guilty plea told the District Court that

Petitioner Simmons and co-defendant Benjamin Martinez (not a party to this petition)

knew nothing about the scheme. Petitioners attempted to introduce Pogosyan’s

statement and testimony from a physician and investigator in the Arizona case as

“reverse 404(b)” evidence. The District Court excluded the evidence and the Court

of Appeals affirmed.

The first two issues presented are:

1. Whether the Petitioners were deprived of their Fifth Amendment right of

Due Process to present a defense by the District Court’s exclusion of the reverse

404(b) evidence.

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2. Whether the Petitioners were deprived of their Sixth Amendment right of

compulsory process by the District Court’s exclusion of the reverse 404(b) evidence.

The District Court gave what the Court of Appeals called a muddled standard

for determining deliberate ignorance. In determining of the error was harmless, the

Court of Appeals simply held there was sufficient evidence for a properly intructed

jury to reach the same verdict.

The third issue presented is:

3. Did the Court of Appeals use the correct standard to determine harmless

error or should it have used the standard set out in FED. R. CRIM. P. 52(a) after it

deems a jury instruction confusing.

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LIST OF PARTIES

The Defendants-Appellants and their Counsel:

Giam Nguyen: Stanley G. Schneider (trial and appeal) and Casie Gotro (trial)

Anna Bagoumian: Thomas S. Berg (trial);Shaun Khojayan and David P. Cunningham

(appeal)

Donovan Simmons: David Adler (trial and appeal)

UNITED STATES OF AMERICA AND ITS COUNSEL:

Ryan K. Patrick, United States Attorney

Kenneth Magidson, former United States Attorney

Appeal

Elizabeth H. Danello, Attorney, U.S. Department of Justice, Criminal Division,

Appellate Section James Pearce U.S.Department of Justice, Criminal Division,

Appellate Section, Carmen Castillo Mitchell, Assistant United States Attorney

Trial and Forfeiture

Adrienne Ellen Frazior, Assistant United States Attorney (forfeiture) Kristine

Rollinson, Assistant United States Attorney (forfeiture), Albert A. Balboni, Assistant

United States Attorney (trial) Rodolfo Ramirez, Assistant United States Attorney

(trial)

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TABLE OF CONTENTS

ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Statutes and Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Other Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

II. BASIS OF THIS COURT’S JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . . . . 1

IV. REASONS FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Issues 1 and 2 (Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Relevant Facts as to Issues 1 and 2 . . . . . . . . . . . . . . . . . . . . . . . . 4

2. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

a. The Due Process Right to Present a Complete Defense . . . 8

b. Compulsory Process: The Right to Present Evidence . . . . 13

c. Conclusion as to Issues 1 and 2 . . . . . . . . . . . . . . . . . . . . . 14

B. Issue 3 (Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. Relevant Facts as to Issue 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

C. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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INDEX OF AUTHORITIES

Cases

Chambers v. Mississippi, 410 U.S. 284 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Kubsch v. Neal, 838 F.3d 845 (7th Cir. 2016), cert. 137 S. Ct. 2161 (2017) . . . 8

Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002) . . . . . . . . . . . . . 4, 12, 13

United States v. Aboumoussallem, 726 F.2d 906 (2d Cir.1984) . . . . . . . . . . 3, 12

United States v. Barrington, 648 F.3d 1178 (11th Cir. 2011) . . . . . . . . . . . . . . . . 9

United States v. Doherty, 867 F.2d 47 (1st Cir. 1989) . . . . . . . . . . . . . . . . . . . . . 18

United States v. Harrod, 856 F.2d 996 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . 10

United States v. Heidebur, 122 F.3d 577 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . 18

United States v. Lane, 474 U.S. 438 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Martinez, 921 F.3d 452 (5th Cir. 2019) . . . . . . . . . . 1, 4-8, 17, 18

United States v. Singleton, 458 Fed. Appx. 169 (3rd Cir. 2012) . . . . . . . . . . . . . 9

United States v. Alayeto, 628 F.3d 917 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 11

United States v. Krezdorn, 639 F.2d 1327 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . 9

United States v. Marchan, 935 F.3d 540 (7th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 20

United States v. Montelongo, 420 F.3d 1169 (10th Cir. 2005) . . . . . . . . . . . . 3, 12

United States v. Seals, 419 F.3d 600 (7th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991). . . . . . . . . . . . . . . . . 3, 9-11

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Washington v. Texas, 388 U.S. 14, 19 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Statutes and Rules

18 U.S.C. § 3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

FED. R. EVID. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 21

FED. R. EVID. 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 11, 20

FED. R. CRIM. P. 52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 15, 18, 19

SUP CT. R. 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUP. CT. R. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

U.S. CONST. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8

U.S. CONST. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13

U.S. CONST. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Other Authorities

2 Wigmore, Wigmore on Evidence § 304, at 252 (J. Chadbourn rev. ed. 1979) . . 10

Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.37A (2015) . . . . . . . 16

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TO THE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES:

COME NOW GIAM NGUYEN, ANNA BAGOUMIAN AND DONOVAN

SIMMONS, through their counsel, STANLEY G.

SCHNEIDER, SHAUN

KHOJAYAN AND DAVID ADLER, and pursuant to SUP CT. R. 14, file this

petition for writ of certiorari and would show the Court as follows:

I. CITATION TO OPINION OF THE COURT BELOW

The United States Court of Appeals affirmed the convictions and sentences of

all three petitioners in a published opinion, United States v. Martinez, 921 F.3d 452

(5th Cir. 2019). A copy of the opinion is attached as Appendix A.

II. BASIS OF THIS COURT’S JURISDICTION

The opinion of the Court of Appeals was released on April 16, 2019.

Petitioners filed a timely motion for rehearing and petition for rehearing en banc.

That motion was overruled on July 23, 2019. A copy of the order denying rehearing

and rehearing en banc is attached as Appendix B. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1) to review a final judgment of a United States Court

of Appeals.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. The Court

of Appeals had jurisdiction pursuant to 28 U.S.C. § 1291.

III. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

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The Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due process of law; nor

shall private property be taken for public use, without just

compensation.

The Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the

crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defence.

FED. R. EVID. 404(b)

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be

admissible for another purpose, such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident. On request by a defendant in a criminal case, the

prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence

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that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause,

excuses lack of pretrial notice.

Federal Rule of Criminal Procedure 52

a) Harmless Error. Any error, defect, irregularity, or variance that does

not affect substantial rights must be disregarded.

(b) Plain Error. A plain error that affects substantial rights may be

considered even though it was not brought to the court's attention.

IV. REASONS FOR REVIEW

A. Issues 1 and 2 (Restated)

1. Whether the Petitioners were deprived of their Fifth Amendment right of

Due Process to present a defense by the District Court’s exclusion of the reverse

404(b) evidence.

2. Whether the Petitioners were deprived of their Sixth Amendment right of

compulsory process by the District Court’s exclusion of the reverse 404(b) evidence.

As to Issues 1 and 2, review is proper pursuant to SUP. CT. R. 10(a) in that the

decision of the Court of Appeals conflicts with United States v. Aboumoussallem,

726 F.2d 906, 911-912 (2d Cir.1984); United States v. Stevens, 935 F.2d 1380 (3d

Cir. 1991); and United States v. Montelongo, 420 F.3d 1169, 1173-75 (10th Cir. 2005).

Review also is proper pursuant to SUP. CT. R. 10(a) in that the decision of the Court

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of Appeals conflicts with the holding of the Texas Court of Criminal Appeals in

Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002).

1. Relevant Facts as to Issues 1 and 2

The facts set out herein are taken from the opinion of the Court of Appeals.

This case involves a scheme to defraud Medicare orchestrated by

two men: Zaven"Mike" Pogosyan and Edvard Shakhbazyan. From 2008

to 2010, Pogosyan opened three purported medical clinics in the

Houston, Texas area: the Jefferson Clinic, the Pease Clinic, and the

Silver Star Clinic. Pogosyan hired defendants Dr. Nguyen, Dr. Martinez,

and Dr. Simmons to serve as "Medical Directors" for these clinics. The

hiring of a physician for each clinic was essential to the scheme because

a clinic cannot become a Medicare provider without an application

submitted by a physician or a non-physician practitioner. Medicare will

only issue the requisite provider number and remit funds to a bank

account in the same name as that physician.

921 F.3d at 462-63 (internal citations omitted).

Dr. Nguyen was hired to be medical director of the first clinic, the Jefferson

Clinic, at a salary of $10,000 per month. At Pogosyan’s direction, he applied for a

Medicare application, opened a bank account in his own name and gave signed

checks to Pogosyan, giving him control over the account. Id. at 463. After Pogosyan

hired staff, they performed administrative tasks such as billing he had previously

done. Marketeers were hired by the staff who gave kickbacks to patients and

instructed the patients not to inform the physicians of the kickbacks. Id.

Dr. Nguyen at the Jefferson Clinic often ordered a series of intrusive tests

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referred to by the Court of Appeals as “rectal tests.” While the clinic had the

equipment to perform the tests and billed Medicare for them, there is no evidence that

any of the tests were in fact conducted. Id. at 463-64.

After claims were paid by Medicare, they were remitted to the bank account

opened by Dr. Nguyen. Pogosyan and Shakhbazyan twice per week withdrew $5,00$9,000. The cash was used for the kickback scheme and their regular trips to Las

Vegas. Id. at 464.

The Jefferson Clinic abruptly closed. Pogosyan, Shakhbazyan, Petitioner

Bagoumian and another person shredded all of the clinics records in a single

afternoon. Pogosyan and Shakhbazyan opened a new clinic, the Pease Clinic, where

Bagoumian and Nguyen moved. Although Dr. Nguyen saw patients at that clinic,

he did not enroll with Medicare as a provider. Instead, co-defendant Dr. Martinez,

a resident physician in Dallas, was hired for $7,000 per month to come to Houston

one day per week to review records. Id. Later, Petitioner Simmons was hired to

review records. Both Martinez and Simmons applied to be Medicare providers,

opened bank accounts and signed blank checks for Pogosyan’s use. Otherwise, the

clinic operated like the Jefferson Clinic, including the use of marketeers and billing

for rectal tests. Id. at 464-65.

The Pease Clinic also closed. Pogosyan and Dr. Nguyen opened a third clinic

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and applied for provider enrollment under the name Silver Star, a professional

association formed by Pogosyan and Dr. Nguyen. Again, Pogosyan controlled the

bank accounts. At Silver Star, Dr. Nguyen saw patients, patients were paid to come

and claims were submitted to Medicare, including for rectal tests.1 Id. at 465.

Essentially, all three clinics operated the same way.

Pogosyan and

Shakhbazyan hired a front man physician to enroll as a Medicare provider and they

controlled the billing and money paid to the clinics.

At trial, Petitioners sought to introduce evidence that Pogosyan and

Shakbazyan, conspirators who pled guilty before trial, were previously indicted in

Arizona for a similar Medicare fraud scheme, and that the investigators there had

viewed those doctors as unwitting dupes rather than co-conspirators. The Arizona

charges were dismissed. The doctors sought testimony from the associated doctor and

an investigator in the case. The district court concluded that even if the Arizona

doctor was tricked, "[p]roving there are other people who didn't know the speed limit

sign was there doesn't prove you didn't know." 921 F.3d at 481. At his own guilty

plea, there was the following exchange between Pogosyan and the District Court:

DEFENDANT POGOSYAN: Doctor — excuse me. Dr. Benjamin

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Dr. Nguyen testified at trial that all rectal test claims were fraudulent. He said he never

ordered rectal tests, he did not know the clinics had the equipment to perform them and they were

not normally conducted in a primary physician’s office. 921 F.3d at 475.

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Martinez and Donovan Simmons, they didn't actually know anything

about the whole — what do you call it, conspiracy. They were —

THE COURT: You didn't tell them, is that what you're telling me?

DEFENDANT POGOSYAN: Yes. Yes, Your Honor.

THE COURT: So you don't know what they knew. You just know what

you — you didn't have any contact with them in which you disclosed —

DEFENDANT POGOSYAN: Yes, Your Honor.

THE COURT: — what was going on? Did you have any contact with

them?

DEFENDANT POGOSYAN: No, Your Honor.

THE COURT: Okay. And so all you can testify to, technically, is that

you are not aware of whether they knew anything about it. Is that what

you're telling me?

DEFENDANT POGOSYAN: Yes, Your Honor.

Id. at 482.

The Court of Appeals affirmed the exclusion of the Arizona witness. It wrote:

Whatever the probative value, the sought-after evidence here was

convoluted. The defendants sought to call non-party witnesses to testify

to a lack of knowledge, of a different scheme, in a different state, that

was operated by two of the same individuals as this scheme, to support

an inference that the more recent defendants had a lack of knowledge of

this scheme.

Id. at 481.

It further held: “The district court did not abuse its discretion by excluding

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attenuated and collateral evidence of the Arizona scheme.” Id. at 482.2

2. Discussion

a. The Due Process Right to Present a Complete Defense

In Chambers v. Mississippi, 410 U.S. 284 (1973), this Court found a due

process right3 to present a full defense. While the application of Chambers has been

convoluted at best, in Kubsch v. Neal, 838 F.3d 845, 855-56 (7th Cir. 2016), cert.

137 S. Ct. 2161 (2017), the court examined the holding in Chambers and determined

it was not a “one and done” decision. Exclusion of the reverse 404(b) evidence in the

instant case deprived Petitioners of their right to present a full defense.

Knowledge and intent were hotly contested matters in this case. The DoctorPetitioners, Nguyen and Simmons, asserted that fraudulent Medicare claims were

filed without their knowledge. They have maintained that vast amounts of money

were transferred to Shakhbazyan and Pogosyan without their knowledge or consent.

The Doctor- Petitioners alleged that rather than co-conspirators, they were victims of

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Petitioner Simmons and Dr. Martinez asked the Court of Appeals to take judicial notice of

Pogosyan’s statements at his guilty plea. The Court did not do so and held that there was nothing

preventing the defendants from calling him as a witness at trial although the Court quoted the

defendants’ brief that he would invoke his Fifth Amendment right against self incrimination. 921

F.3d at 482.

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In Chambers, the due process right was based on the Fourteenth Amendment. Because the

federal government, not a state, is involved in the instant case, Petitioners rely on the Due Process

Clause of the Fifth Amendment.

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fraud perpetrated by Shakhbazyan and Pogosyan – the same fraudulent scheme that

these clinic owners perpetrated in Arizona.

The admissibility of extrinsic evidence of other crimes, bad acts, or wrongs is

governed by Federal Rule of Evidence 404(b). United States v. Krezdorn, 639 F.2d

1327, 1331 (5th Cir. 1981). However, if the defendant offers the evidence against a

third party, this category of evidence is referred to as “reverse 404(b),” and while

rarely used, the objective of such evidence is to exonerate the defendant. Stevens, 935

F.2d at 1401-02. In this case, the third parties are named co-defendants who just

months before the onset of the instant alleged conspiracy duped doctors into

committing health care fraud in Arizona.

In the instant case, if Pogosyan and Shakhbazyan had gone to trial, the

Government could have presented proof of the Arizona case under Rule 404(b) to

show their motive, scheme, plan, knowledge or preparation. The fact that a person

immediately before the fraud at issue used an almost identical scheme to perpetrate

another, almost identical fraud, is proof that he used the same scheme. See

e.g. United States v. Singleton, 458 Fed. Appx. 169 (3rd Cir. 2012) (proof of similar

fraud scheme properly offered to show intent to defraud and knowingly participating

in the fraud scheme at issue); United States v. Barrington, 648 F.3d 1178, 1186-87

(11th Cir. 2011) (evidence of earlier scheme to change grades in university records

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admissible to show intent in similar scheme on trial); United States v. Harrod, 856

F.2d 996, 1000-01 (7th Cir. 1988) (Evidence of two earlier bank fraud schemes

properly admitted to show intent to engage in the bank fraud scheme on trial).

Evidence of the earlier scheme in Arizona was admissible as reverse 404(b) in

the instant case to show the scheme Pogosyan and Shakhbazyan utilized. The

Arizona evidence showed the scope and means that they would use to con or dupe

unsuspecting doctors to become involved with their scheme. It was similar to the

scheme in the instant case in all important respects. It was relevant under FED. R.

EVID. 401 in that it tended to show the Doctor-Petitioners were duped just like the

Arizona doctors and therefore lacked knowledge or intent to defraud medicare. As

discussed in the classic Wigmore treatise on evidence,

It should be noted that [“other crimes”] evidence may be also available

to negative the accused’s guilt. E.g., if A is charged with forgery and

denies it, and if B can be shown to have do series of similar forgeries

connected by a plan, this plan of B is some evidence that B and not A

committed the forgery charged. This mode of reasoning may become the

most important when A alleges that he is a victim of mistaken

identification.

2 Wigmore, Wigmore on Evidence § 304, at 252 (J. Chadbourn rev. ed. 1979).

In Stevens, the Third Circuit recognized the importance of reverse 404(b)

evidence and the low bar to its admissibility. The court said:

[T]he defendant, in order to introduce other crimes evidence, need not

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show that there has been more than one similar crime, that he has been

misidentified as the assailant in a similar crime, or that the other crime

was sufficiently similar to be called a “signature” crime. These criteria,

although relevant to measuring the probative value of the defendant’s

proffer, should not be erected as absolute barriers to its admission.

Rather, a defendant must demonstrate that the “reverse 404(b)” evidence

has a tendency to negate his guilt, and that it passes the Rule 403

balancing test.

Stevens, 935 F.2d at 1406 (emphasis added). The Stevens test for admissibility of

reverse 404(b) is the “relatively low relevance hurdle.” Id. at 1384.

“District courts should be less discriminating in admitting reverse 404(b)

evidence than in admitting evidence proffered by the prosecution.” United States v.

Alayeto, 628 F.3d 917, 921 (7th Cir. 2010). Put another way, “the defense is not held

to as rigorous a standard as the government in introducing reverse 404(b) evidence.”

United States v. Seals, 419 F.3d 600, 607 (7th Cir. 2005) (finding the trial court

abused its discretion in excluding evidence, but harmless error). In an elucidating

concurring opinion, Judge Posner set out the theory behind the differing standards,

concluding that, “what is sauce for the goose should be sauce for the gander.” Id. at

613.4

The evidence the defense proffered in this case was relevant because it would

4

Using Judge Posner’s sauce for the goose is sauce for the gander analysis, under the Court

of Appeals’ holding, evidence offered by the Government of a similar scheme under Rule 404(b)

would be collateral and attenuated and inadmissible.

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have made the existence of a material fact of consequence in the case at bar, the

Doctor-Petitioners’ culpability, knowledge, or intent, less probable. Montelongo, 420

F.3d at 1174-75 (holding evidence of prior similar acts by alleged co-conspirators

relevant “to their defense that [the defendants] had no knowledge of the [charged

crime].”); Aboumoussallem, 726 F.2d at 912 (holding testimony of prior similar acts

by alleged co-conspirator relevant as, “It tends to make the existence of a consequential

fact, [the appellants’] knowledge, less probable”).

The Court of Appeals’ holding on the admissibility of the reverse 404(b)

evidence also conflicts with the holding of the Texas Court of Criminal Appeals in

Torres. In that case, the court held that violent acts by a deceased in a murder case

were admissible to show the deceased’s frame of mind – even if the acts were

unknown to the defendant – to support a claim of self defense. The court wrote:

Here, the proffered testimony revealed that, two days before he was

killed, Valdez entered the apartment by climbing through a window. He

threatened Diane and her children that "he would do something to

[them]" if she did not tell him where Roxanne was. This shows a mind

set of violence against those who might stand between him and

Roxanne. It could also explain Valdez's unorthodox entry by

demonstrating the intent or motive of getting back with Roxanne one

way or another, or keeping others away from Roxanne by violence if

necessary. Because the proffered testimony was probative of the

deceased's state of mind, intent, and motive, we hold that the Court of

Appeals erred in concluding that the evidence was relevant only to

character conformity.

12

71 S.W.3d at 762.

Given the erroneous jury charge on deliberate ignorance submitted by the

District Court, over objection, the Arizona evidence would negate any inference that

might be drawn by the evidence and the Government’s argument that the DoctorPetitioners acted with willful blindness. The Arizona evidence tended to show that

Shakhbazyan and Pogosyan had the unique ability to gain the trust of physicians and

use them to their own ends.

b. Compulsory Process: The Right to Present Evidence

The right to compulsory process is more than the right to force witnesses to

appear in court. It also includes the right to offer their testimony to present the

defendant’s version of events as well as the prosecution’s so that the jury may decide

where the truth lies. The right to compulsory process includes the right to present a

defense. Washington v. Texas, 388 U.S. 14, 19 (1967).

For the reasons set out, supra, the Doctor-Petitioners had the Sixth Amendment

compulsory process right to present evidence from the Arizona investigator and

duped physician to show their lack of knowledge of the fraud scheme.5

5

The Court of Appeals statement that they could have called Pogosyan for that purpose, 921

F.3d at 482, is irrelevant to their right to call other witnesses to prove the same facts. The court’s

inference that they should have called a co-defendant and therefore it is permissible to exclude other

relevant evidence in effect deprives Petitioners of their Sixth Amendment right to counsel. It is

counsel who makes the decisions on trial strategy, not the trial court or court of appeals.

13

The District Court’s holding that proving the Arizona doctors were duped,

“proving that other people who didn’t know speed limit sign doesn’t prove you didn’t

know,” or the Court of Appeals analysis that the sought to be introduced evidence

was “convoluted” and amounted to calling non-party witnesses to a scheme in a

different state to support an inference that the Doctor-Petitioners lacked knowledge,

921 F.3d at 481, miss the point. The evidence was offered to show the organizers’

scheme to dupe doctors into participating in their scheme to defraud Medicare. That

leads to the inference the plan and scheme was to dupe the Doctor-Petitioners in the

instant case the same way.

c. Conclusion as to Issues 1 and 2

The reverse 404(b) evidence sought to be admitted by the Doctor-Petitioners

to show lack of knowledge was admissible to show the scheme and plan for the

Medicare fraud perpetrated by Pogosyan and Shakhbazyan. The defendants in the

instant case claimed they did not know of the fraud. Evidence of the Arizona fraud

was relevant to their defense in that it would have shown that Pogosyan and

Shakhbazyan kept doctors in the dark to further their scheme. The defendants had the

due process and compulsory process rights to present that evidence to the jury.

This is especially important in light of the confusing deliberate ignorance

instruction given by the District Court. Stated simply, if a jury can infer from the

14

facts that the defendants had knowledge of the scheme, the same jury can infer from

the Arizona scheme that Pogosyan and Shakhbazyan deliberately kept them in the

dark.

This Court should grant certiorari to resolve the conflicts between the Court of

Appeals in the instant case with holdings of the Second, Third and Tenth Circuits and

the Texas Court of Criminal Appeals as to the admissibility of reverse 404(b)

evidence to negate knowledge.

B. Issue 3 (Restated)

3. Did the Court of Appeals use the correct standard to determine harmless

error or should it have used the standard set out in FED. R. CRIM. P. 52(a)after the

Court of Appeals deemed the jury instruction confusing.

1. Relevant Facts as to Issue 3

Again, all facts herein are taken from the Court of Appeals’ opinion.

All the defendants take issue with the district court's

specially-crafted instruction on deliberate ignorance. At the charging

conference, the government requested this pattern instruction on that

subject:

You may find that a defendant had knowledge of a fact if

you find that the defendant deliberately closed his eyes to

what would otherwise have been obvious to him. While

knowledge on the part of the defendant cannot be

established merely by demonstrating that the defendant was

negligent, careless, or foolish, knowledge can be inferred

15

if the defendant deliberately blinded himself to the

existence of a fact.

Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 1.37A (2015).

****

The district court would not have abused its discretion by giving

our pattern instruction on deliberate ignorance. The district court charted

a different course. Instead of granting the government's request, the

district court gave this instruction that is written in terms of

circumstantial evidence:

The defendants must be found to have acted knowingly and

willfully. "Knowingly" means that an act was done

intentionally and not because of mistake, accident, or

another innocent reason. "Willfully" means an act was

done with a conscious purpose to violate the law.

****

Circumstantial facts tend to be the only kind available for

subjective facts, something about which the jury lacks

direct access to the defendant's mind. For instance, the jury

may infer knowledge and intent from conduct or context.

Attempts to eliminate or minimize evidence of knowledge

may justify an inference of it. Knowledge does not require

certainty. The law permits inferred, expected judgments to

count as knowledge. These inferences must be beyond a

reasonable doubt.

The doctors treat this as a flawed deliberate ignorance instruction

that allowed the jury to infer knowledge based on a defendant's

negligence. Bagoumian makes a similar argument and characterizes the

instruction as a legally incorrect statement of the knowledge element

that "essentially directed guilty verdicts" against the defendants or

"cause[d] the jury to use a lower negligence standard."21Link to the text

16

of the note Bagoumian also argues that if it was a deliberate ignorance

instruction, it was improperly given as to her because there was no

evidence of her "purposeful avoidance." The defendants preserved their

objections to this instruction.

921 F.3d at 477-78.

The Court of Appeals analyzed the District Court’s instruction in this way:

We must start with the observation that this is a difficult

instruction to understand. It would have been better left as a conceptual

and unsubmitted disagreement with the pattern deliberate ignorance

instruction. The concern is whether the instruction lowered the standard

of proof as to knowledge. Error will exist if the instruction can

reasonably be read to mean that if people would be expected to infer

something, the defendant is guilty even if he or she negligently failed to

make the inference.

We do not see such a reading by jurors as a likely one. We say

that because, in summary, the instruction informed jurors they would be

justified in finding a defendant knew of the fraud if he or she took steps

"to eliminate or minimize evidence of knowledge." The "knowledge"

that needed to exist did "not require certainty," which reasonably would

mean that a defendant who attempted to avoid creating evidence of

knowledge did not need to be absolutely certain of the fraud to be

criminally knowledgeable. Jurors were also told in this context that they

could not rely on "mistake, accident, or another innocent reason" to

support guilt. The challenged language about expectations and

inferences was followed immediately by requiring the inferences to "be

beyond a reasonable doubt."

Less than sparkling clarity or a problematic phrase does not

invalidate an instruction and certainly does not necessarily create

reversible error. An instruction is examined in the context of the

universe of guidance. Dupuy v. Cain, 201 F.3d 582, 587 (5th Cir. 2000).

Though we see no clear lowering of the standard of proof as to

knowledge, we do see the possibility of confusion. Potentially creating

17

more uncertainty for jurors, the district court recited the reasonable

doubt standard in its preliminary instructions and general instructions,

but in the special instructions it recited the reasonable doubt standard for

every count except the health care fraud conspiracy.

For these reasons, uncertainty persists about whether jurors would

have understood from this instruction in isolation that they must find

beyond a reasonable doubt that each defendant actually knew about the

fraud based on evidence of a defendant's attempts to avoid learning of

it. They were not instructed on deliberate ignorance of the fraud. We

conclude that it was error to give this instruction, not because it gave

a lower standard of proof to jurors but because it gave such a muddled

standard.

Id. at 480. (Emphasis added)

The Court of Appeals concluded: “We conclude that a more clearly instructed

jury would have reached the same verdict as did this one. The error was harmless.”

Id. at 481. It did not cite or mention Rule 52.

2. Discussion

Rule 52(a) is the harmless error rule for non-constitutional error. This Court

held that in making a harmless error determination under Rule 52(a), the appellate

court should examine the entire record and find error harmless if it did not effect the

substantial rights of the parties. United States v. Lane, 474 U.S. 438, 445 (1986).

Accord, United States v. Heidebur, 122 F.3d 577, 581 (8th Cir. 1997), United States

v. Doherty, 867 F.2d 47, 58 (1st Cir. 1989).

The Court of Appeals erred in considering only the erroneous instruction in

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determining whether the error was harmful and it erred in not examining the entire

record under Rule 52(a) to determine if the substantial rights of the defendants were

effected. It failed to consider the effect of the muddled and confusing instruction on

the jury in the absence of the exclusion of the Arizona fraud evidence.

Instead of considering the excluded evidence in light of the erroneous

deliberate ignorance, the Court of Appeals simply held that a properly instructed jury

– without the Arizona fraud evidence – would have reached the same verdict.

Issues 1 and 2 on the exclusion of the reverse 404(b) evidence are intertwined

with this issue. While a properly instructed jury could have reached the same verdict

based on the evidence before it, evidence of a plan and scheme to dupe doctors and

keep them in the dark about the Medicare fraud is relevant to the jury’s determination

of deliberate ignorance. The two go hand in glove.

The reverse 404(b) evidence is strong evidence that the defendants were

affirmatively kept from knowing of the fraud scheme rather than being deliberately

ignorant.

This Court should grant certiorari to determine if improperly excluded evidence

should be considered in a court of appeals’ analysis of harmless error under Rule

52(a) and whether Rule 52(a) is the sole harmless error rule for properly preserved

non-constitutional error.

19

Failure to the improper exclusion of the reverse 404(b) in the harmless error

analysis is contrary to the cumulative error doctrine recognized United States v.

Marchan, 935 F.3d 540 (7th Cir. 2019).

C. Conclusion

The issues presented are closely intertwined. At trial, petitioners did not contest

the fact of a Medicare fraud scheme. Their defense was they did not know anything

about it and that they were simply medical professionals doing their jobs as

employees of a clinic. They were not the ones who billed Medicare and they had no

control over the clinics’ bank accounts.

In order to show the scheme orchestrated by Zaven "Mike" Pogosyan and

Edvard Shakhbazyan, they sought to introduce as reverse 404(b) evidence a similar

scheme in Arizona run by the same two men and that the medical professionals in that

scheme were kept in the dark about the fraud. The evidence of the Arizona scheme

would have been admissible under Rule 404(b) to show scheme if Pogosyan and

Shakhbazyan had gone to trial.

The district court’s analysis that the reverse 404(b) evidence about another

scheme didn’t show lack of knowledge and the Court of Appeals’ analysis the district

court didn’t abuse its discretion in excluding the evidence because it was convoluted

would in effect gut Rule 404(b) for both the prosecution and the defense. The same

20

reasoning would apply to any other crime where the scheme or plan was identical to

another crime. Be it a series bank robberies with signature modus operandi, drug

deals in multiple locations or any other type of similar crimes, the reasoning would

be the same.

The testimony of the innocent physician in the Arizona case as well as the

investigators was relevant under FED. R. EVID. 401.

The exclusion of this crucial evidence is directly related to the harm caused by

the confusing deliberate ignorance instruction given by the district court. The

deliberate ignorance instruction coupled with the exclusion of the reverse 404(b)

evidence resulted in the jury considering Petitioners’ claim of lack of knowledge

based on a flawed and confusing instruction and in the absence of admissible

evidence showing the perpetrators had a scheme in which the medical professionals

were kept in the dark about the fraud.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioners pray that this Court

grant their petition for writ of certiorari, order full briefs and oral arguments, vacate

the decision of the court of appeals and remand to that court for further proceedings.

21

Respectfully submitted,

Stanley G. Schneider

Schneider & Mckinney, PC

Texas Bar No. 17790500

440 Louisiana, Suite 800

Houston, TX 77002

Attorney for Giam Nguyen

David Adler

Texas Bar No. 00923150

David Adler, PC

6750 West Loop S., Suite 120

Bellaire, TX 77401 Attorney for

Donovan Simmons

Shaun Khojayan

Law Offices of Shaun Khojayan

& Associates P.L.C.

515 S. Flower St., 19th Floor

Los Angeles, CA 90071

Attorney for Anna Bagoumian

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