United States v. Arman Abovyan (11th Cir. Feb. 2021)

The Federal Docket

Arman Abovyan was convicted of healthcare fraud and dispensing controlled substances unlawfully after a jury trial, and he appealed his convictions. The case involved allegations that Abovyan, a physician, worked with a co-conspirator to operate two substance abuse treatment centers that were paying kickbacks to owners of halfway homes and through which Abovyan was ordering unnecessary lab drug tests Dr. Abovyan also billed a substantial amount of money in connection with prescribing buprenorphine. The Eleventh Circuit rejected each of his claims and affirmed.

First, the Court held that there was sufficient evidence supporting Abovyan’s conviction for healthcare fraud conspiracy, citing evidence that Abovyan created standing orders to bill insurance for medically unnecessary urine tests, pre-signed forms to order such tests, did not test uninsured patients or fully examine patients, and he allowed a non-medically trained co-conspirator make all the testing decisions.

The Court also affirmed the unlawful dispensation of controlled substance convictions. The Court agreed that Abovyan’s violation of 21 USC 823(g) for prescribing buprenorphine without an “X Number” was not “a per se violation of 841(a)” and would not support a conviciton under 841(a) standing alone, but cited the government’s expert’s testimony regarding several other problems with Abovyan’s prescribing practices. Without accompanying medical addiction treatment, the expert had testified, the prescriptions did not serve a legitimate medical purpose. The expert testified that Abovyan had been giving the withdrawal/pain medication to patients who were not experiencing those symptoms and to patients who were not otherwise being actively treated for addiction.

The Court also affirmed the jury instructions against plain error review despite the instructions failing to define the elements of healthcare fraud for the substantive counts, though the elements had been discussed in the conspiracy instructions. Noting that the indictment listed the elements anyway, the Court concluded that Abovyan could not show his substantial rights were affected. The Court also addressed Abovyan’s claims that the jury should have been instructed on the nature of the X Number and other issues, rejecting his arguments.

The Court also affirmed Abovyan’s sentence. The Court rejected Abovyan’s sentence that the court should have used the lower, actual loss amount rather than the intended loss amount (a difference of 10 million dollars), though Abovyan’s co-conspirators had been sentenced under the actual loss amount. The Court held this did not amount to a guidelines error and rejected Abovyan’s arguments that the use of different loss amounts created an unwarranted sentencing disparity with his co-conspirators. The Court relied on the fact that the loss amount used to calculate the co-conspirators’ sentences were memorialized in a plea agreement, which made them not “similarly situated” to Abovyan and made the disparity not “unwarranted.” The Court also held that there was no plain error in the district court sentencing Abovyan under an 841(a) provision that carried a higher maximum sentence despite the jury’s lack of specification in the verdict.

Appeal from the Southern District of Florida
Opinion by Hull, joined by W. Pryor and Marcus

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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