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United States v. Gabinskaya

United States Court of Appeals, Second Circuit

July 12, 2016

United States of America, Appellee,
v.
Tatyana Gabinskaya, AKA Sealed Defendant 24, Defendant-Appellant, MIKHAIL ZEMLYANSKY, AKA Sealed Defendant 1, AKA Mike Zemlin, AKA Russian Mike, AKA Mike Z, AKA Zem, MICHAEL DANILOVICH, AKA Sealed Defendant 2, AKA Mike Daniels, AKA Fat Mike, AKA Mike D, YURIY ZAYONTS, AKA Sealed Defendant 3, AKA KGB, MIKHAIL KREMERMAN, AKA Sealed Defendant 4, MATTHEW CONROY, AKA Sealed Defendant 5, MICHAEL BARUKHIN, AKA Sealed Defendant 6, AKA Barkin, AKA Mike B, MIKHAIL OSTRUMSKY, AKA Sealed Defendant 7, AKA Skinny Mike, BORIS TREYSLER, AKA Sealed Defendant AKA Borya, ANDREY ANIKEYEV, AKA Sealed Defendant 9, VLADIMIR GRINBERG, AKA Sealed Defendant 10, VLADISLAV ZARETSKIY, AKA Sealed Defendant 11, YEVGENIY SHUMAN, AKA Sealed Defendant 12, AKA Eugene, AKA Lokh, AKA Zhenya, DMITRY SLOBODYANSKY, AKA Sealed Defendant 13, AKA Dima, ALEXANDER SANDLER, AKA Sealed Defendant 14, AKA Sasha, AKA Nose, GREGORY MIKHALOV, 1 AKA Sealed Defendant 15, MICHAEL MORGAN, AKA Sealed 2 Defendant 16, MARK DANILOVICH, AKA Sealed Defendant 17, JEFFREY LEREAH, 3 AKA Sealed Defendant 18, DMITRY LIPIS, AKA Sealed Defendant 19, AKA Dima, 4 AKA Danny, LYNDA TADDER, AKA Sealed Defendant 20, MARIA DIGLIO, AKA 5 Sealed Defendant 21, SOL NAIMARK, AKA Sealed Defendant 22, SERGEY 6 GABINSKY, AKA Sealed Defendant 23, JOSEPH VITOULIS, AKA Sealed Defendant 7 25, LAURETTA GRZEGORCZYK, AKA Sealed Defendant 26, AKA Dr. G, EVA 8 GATEVA, AKA Sealed Defendant 27, ZUHEIR SAID, AKA Sealed Defendant 28, 9 DAVID D. THOMAS, BILLY N. GERIS, AKA Sealed Defendant 30, MARK ALAN 10 SHAPIRO, AKA Sealed Defendant 31, ROBERT DELLA BADIA, AKA Sealed 11 Defendant 32, MICHELLE GLICK, AKA Sealed Defendant 33, PAVEL POZNANSKY, 12 AKA Sealed Defendant 34, AKA Paul, CHAD GREENSHNER, AKA Sealed 13 Defendant 35, CONSTANTINE VOYTENKO, AKA Sealed Defendant 36, DIANA 14 ZAIDMAN, IRINA ZAYONTS, MILAN DIKKER, RICK DIBIASI, MIKHAIL BAKHRAHK, 15 JOHN MAURELLO, IGOR KATSMAN, 16 17 Defendants.

          Argued: June 6, 2016

         Defendant-Appellant Tatyana Gabinskaya appeals from a judgment of conviction on various fraud and conspiracy charges, entered in the United States District Court for the Southern District of New York (J. Paul Oetken, J.). The indictment charged that Gabinskaya had conspired to defraud insurance companies in connection with claims under New York's No Fault Comprehensive Motor Vehicle Insurance Reparation Act, N.Y. Ins. Law § 5102 et seq., which requires that a medical services professional corporation providing treatment under the Act be owned by a licensed physician. Gabinskaya, a licensed physician, held herself out as the owner of one such professional corporation, but the government contended that coconspirator nonphysicians were the true owners who actually controlled and operated the corporation. Gabinskaya argues that the jury should have been instructed to consider only the formal indicia of ownership, and not such questions as who controlled the operation of the corporation and bore the financial risk. We disagree, because New York law is clear that ownership for purposes of the No Fault statute means more than mere paper ownership and that factors beyond formal indicia of ownership may be considered by a fact-finder in determining ownership under New York's no-fault insurance laws.

          Sean M. Maher, New York, NY, for Defendant-Appellant.

          Amanda Kramer (Margaret Garnett, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.

          Before: Sack and Lynch, Circuit Judges, and Murtha, District Judge. [**]

          GERARD E. LYNCH, CIRCUIT JUDGE

         Defendant-Appellant Tatyana Gabinskaya appeals from a judgment of conviction, entered on March 3, 2015, in the United States District Court for the Southern District of New York (J. Paul Oetken, J.), following a two-week jury trial. Gabinskaya was found guilty of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349, health care fraud in violation of 18 U.S.C. § 1347, conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349, and mail fraud in violation of 18 U.S.C. § 1341, and sentenced to one year and one day in prison. The indictment charged that Gabinskaya participated in a broad scheme involving a number of medical services professional corporations ("PCs") to defraud insurance companies in connection with claims submitted under New York's No Fault Comprehensive Motor Vehicle Insurance Reparation Act, N.Y. Ins. Law § 5102 et seq. New York law requires medical PCs to be owned by licensed physicians, see N.Y. Bus. Corp. Law § 1507(a) ("A professional service corporation may issue shares only to individuals who are authorized by law to practice in this state a profession which such corporation is authorized to practice . . . ."), and provides that a medical provider that is not properly licensed is ineligible to receive reimbursement under the no-fault insurance regime, see N.Y. Comp. Codes R. & Regs. tit. 11, § 65–3.16(a)(12) ("A provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement . . . .").

         Gabinskaya, a licensed physician, held herself out as the owner of a PC, Clearview of Brooklyn Medical P.C. ("Clearview"), and represented herself as such on claims submitted by Clearview. While Gabinskaya was the owner on paper, the jury found that the true owners of the clinic were coconspirator nonphysicians, Mikhail Zemlyansky and Michael Danilovich, who actually controlled and operated Clearview, took the profits from its operation, and bore the risk of loss. Gabinskaya principally contends that the jury should have been instructed, in determining the question of ownership, to consider only the formal indicia of ownership, and not the economic realities. We disagree because New York law is clear that ownership for purposes of New York insurance law is based on actual economic ownership. We hold that, as in the civil context, a factfinder in a criminal case may properly consider factors beyond formal indicia of ownership in determining ownership under New York's no-fault insurance laws. For the reasons that follow we reject all of Gabinskaya's arguments on appeal, and AFFIRM the judgment of the district court.

         BACKGROUND

         The following facts are based on the evidence at trial, which we take in the light most favorable to the verdict. United States v. Gowing, 683 F.3d 406, 408 (2d Cir. 2012).

         Zemlyansky and Danilovich operated a large-scale scheme to defraud insurance companies by submitting false claims under New York's no-fault insurance laws for medical services allegedly provided by various PCs under their control. Under New York law, PCs providing medical services to no-fault insurers must be owned by licensed physicians. See N.Y. Bus. Corp. Law § 1507(a). As part of their scheme, Zemlyansky and Danilovich recruited and paid licensed physicians to open PCs specializing in providing medical services that car accident victims might need. Gabinskaya was one such physician.

         Gabinskaya signed incorporation paperwork forming Clearview as a PC, and documents to open its bank accounts. In actual fact, however, Gabinskaya was merely a front whose medical license permitted Clearview to submit insurance claims. Zemlyanksy and Danilovich, who were not physicians, controlled and operated the clinic, with no actual oversight by Gabinskaya, in such a way as to maximize the insurance payout from the statutory pool of no-fault automobile insurance, which covers up to $50, 000 in medical expenses for each individual injured in a car accident in New York state. The existence of this scheme was not disputed at trial; Gabinskaya challenges only her knowing participation in the scheme.

         The evidence at trial demonstrated that Gabinskaya played no role at Clearview. She did not see patients. She did not supervise employees. She was rarely present at the clinic. Three Clearview employees testified that they were unaware of Gabinskaya's having any role with respect to Clearview, and testified that they understood Zemlyansky and Danilovich to be the owners of the clinic.

         Nor did Gabinskaya bear the financial risk of the success or failure of the scheme. Instead, Zemlyansky and Danilovich paid her a flat fee of $1, 500 per week. Danilovich acknowledged Gabinskaya's role in a recorded phone call. When referring to another doctor whom the coconspirators were attempting to recruit to become a paper owner of a PC, and who apparently intended to take some role in managing the PC, Danilovich contrasted the intended arrangement with the relationship with Gabinskaya, saying, "It's not going to be like a, let's say, Tatyana, you know what I mean, 1500 bucks and that's it, keep it moving." A. 1132.

         In December 2010 and January 2011, Gabinskaya was required by Allstate Insurance to submit to an examination under oath ("EUO") regarding insurance claims which had been submitted by Clearview. During the EUO, Gabinskaya stated that she worked at Clearview "three hours per day, " "two, three times a week" during which times she approved days off and conducted a "five, ten minute interview" of all new patients "to determine which MRI comes first." A. 667. Of course, this testimony contradicted the testimony set forth above by the three Clearview employees. During the EUO, Gabinskaya specifically named Adelaida Martinez as a patient that she had personally interviewed prior to Martinez's receiving care. Martinez, ...


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