461 F. App'x 7
2d Cir.2012Background
- United States v. Krikheli involves Ilya and Rachel Krikheli challenging three counts of Medicare fraud under 42 U.S.C. § 1320a-7b(b)(1)(B), (2)(A) after trial in EDNY; Aziz Srivastava and Muhammad Bajwa are co-defendants.
- Record includes audio/video recordings showing payments to physicians or through middlemen to induce referrals to a diagnostic imaging facility operated by Hagerbrant.
- Evidence showed direct (and not merely promotional) payments to influence referrals, satisfying § 1320a-7b(b)(2)(A) and § 1320a-7b(b)(1)(B).
- Defendants argued the evidence only showed advertising/endorsement by defendants and independent physician judgment, not kickbacks or bribes.
- District court admitted relevant bad-act and lay-opinion evidence and gave jury instructions explaining quid pro quo and referral inducement; the jury found guilt on the charged counts.
- This Court affirms the convictions, holding the evidence sufficient and the evidentiary rulings and instructions not reversible error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence for fraudulent scheme | Krikhelis claim no kickbacks, only advertising | Krikhelis contend physicians retained independent judgment | Evidence supports kickbacks and inducements; sufficient to sustain verdict |
| Evidentiary rulings on uncharged bad acts | Uncharged admissions probative for scheme | Admission improperly prejudicial | No reversible error; limited use and curative instructions adequate |
| Evidentiary ruling on lay opinion testimony | Lay opinions explained industry jargon | Testimony improper if not foundational | Proper foundation; admissible lay opinion to explain terms |
| Jury instructions on payment to referers | Instructions correct; sufficient to prove quid pro quo | Instructions not narrowly tailored | Instructions correctly stated law; not prejudicial |
Key Cases Cited
- United States v. Miles, 360 F.3d 472 (5th Cir. 2004) (limits on § 1320a-7b(b)(2)(A) conviction when only advertising occurs)
- United States v. Simmons, 923 F.2d 934 (2d Cir. 1991) (uncorroborated statements to law enforcement limited in some contexts)
- Smith v. United States, 348 U.S. 147 (1954) (uncorroboration concerns in some circumstances)
- Opper v. United States, 348 U.S. 84 (1954) (uncorroboration concerns in some circumstances)
- United States v. O’Connor, 650 F.3d 839 (2d Cir. 2011) (de novo review of sufficiency with light most favorable to prosecution)
- United States v. Simels, 654 F.3d 161 (2d Cir. 2011) (evidentiary abuse of discretion review guidance)
- United States v. Edwards, 342 F.3d 168 (2d Cir. 2003) (admissibility of limited use of prior acts)
- United States v. Elias, 285 F.3d 183 (2d Cir. 2002) (factors for prosecutorial misconduct prejudice)