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United States of America v. Ilya Sivchuk

June 12, 2012

UNITED STATES OF AMERICA
v.
ILYA SIVCHUK



The opinion of the court was delivered by: Yohn, J.

Memorandum

A jury convicted defendant, Ilya Sivchuk, of making a false statement relating to health-care matters in violation of 18 U.S.C. § 1035(a)(2). He has filed a post-trial motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c), or alternatively, for a new trial under Federal Rule of Criminal Procedure 33. For the reasons discussed below, I will deny defendant's motion.

I. Background

This case arose out of an investigation of the improper practices of Advantage Ambulance, a private ambulance company in Philadelphia. From mid-2003 to December 2009, Advantage Ambulance was owned by defendant's wife, Alla Sivchuk. Defendant, who served as the company's vice president, and Alla Sivchuk, who served as the president, were largely uninvolved in the daily operations of the business. The Sivchuks entrusted the management of Advantage Ambulance to Ivan Tkach.*fn1 On September 30, 2004, the United States Department of Health and Human Services ("HHS") excluded Tkach from working as a Medicare program health-care-services provider for a minimum of five years following his conviction for misdemeanor offenses. Nevertheless, Tkach continued working in a management capacity at Advantage Ambulance during that five-year period.

In April 2007, Fox News aired an investigative report that disclosed improper practices at Advantage Ambulance.*fn2 As a result of the broadcast, the Federal Bureau of Investigation ("FBI") commenced a criminal investigation into Advantage Ambulance. Defendant's conviction stems from statements and representations he made to federal agents on July 7, 2010, during the course of that investigation.

On February 9, 2011, a grand jury indicted defendant on one count of making a false statement relating to health-care matters in violation of 18 U.S.C. § 1035(a)(2).*fn3 On May 11, 2011, a grand jury returned a superseding indictment that charged as follows:

On or about July 7, 2010, in the Eastern District of Pennsylvania, defendant ILYA SIVCHUK, in any matter involving a health care benefit program, knowingly and willfully made a materially false, fictitious, and fraudulent statement and representation, in connection with the delivery of or payment for health care benefits, items, or services, that is, defendant ILYA SIVCHUK stated to federal agents that defendant IVAN TKACH worked for Advantage as merely a shop mechanic, knowing full well that defendant IVAN TKACH was the operational manager of the business for the duration of his employment there, whose duties included, among others, hiring and firing employees, handling patient complaints, resolving employee disputes, transporting patients, and billing Medicare.

In violation of Title 18, United States Code, Section 1035(a)(2).

Defendant's five-day jury trial was held in October and November 2011. At the close of the government's case, defendant moved for judgment of acquittal under Federal Rule of Criminal Procedure 29(a) and I reserved ruling in accordance with Rule 29(b). Defendant was found guilty by the jury on November 7, 2011, after which I denied defendant's motion for judgment of acquittal. Defendant filed the current motion for judgment of acquittal or a new trial on November 11, 2011, arguing that there was insufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that (1) defendant made a false statement, (2) the false statement was material, and (3) the false statement was made in connection with the delivery of or payment for health-care benefits, items, or services. In the alternative, defendant urges me to grant a retrial in order to avoid a serious miscarriage of justice. The government filed its response on December 8, 2011, arguing that it presented ample evidence at trial to support the jury's finding of guilt. After transcripts of the trial became available, defendant submitted a brief in support of his motion on December 27, 2011.

Viewing the evidence in the light most favorable to the government, as I am required to do in evaluating defendant's motion for judgment of acquittal, I conclude that the evidence was sufficient for a reasonable jury to find beyond a reasonable doubt that defendant knowingly and willfully made a materially false representation in connection with the delivery of or payment for health-care benefits, items, or services. Exercising my own judgment in assessing the government's case, as I must in considering defendant's motion for a new trial, I find that the verdict is not a serious miscarriage of justice. Thus, I will deny defendant's motion.

II. Discussion

A. Motion for Judgment of Acquittal

Defendant argues that there was insufficient evidence presented at trial to convict him of making a false statement relating to health-care matters in violation of 18 U.S.C. § 1035(a)(2). He therefore urges me to enter a judgment of acquittal pursuant to Rule 29(c).

i. Standard

Rule 29(c) provides that a defendant may, within seven days after the verdict, or such longer time as the court may prescribe, file a motion for a judgment of acquittal. Fed. R. Crim. P. 29(c)(1). The purpose of Rule 29 is to question the sufficiency of the evidence to support a conviction. See United States v. Cohen, 301 F.3d 152, 156 (3d Cir. 2002). "A defendant challenging the sufficiency of the evidence bears a heavy burden." United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992). Furthermore, "[a] finding of insufficiency should be confined to cases where the prosecution's failure is clear." United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (internal quotation marks and citations omitted).

In reviewing the record to determine whether there was sufficient evidence to support a conviction, "the court must view the evidence and the inferences logically deducible therefrom in the light most favorable to the government, to determine if there is sufficient evidence to support the factfinder's verdict." United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1989). Moreover, "the trial court's ruling on the sufficiency of the evidence is governed by strict principles of deference to a jury's findings." United States v. Ashfield, 735 F.2d 101, 106 (3d Cir. 1984). "A verdict will be overruled only if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt." United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987) (citations omitted); see also United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991) (finding that in evaluating the sufficiency of the evidence to support a conviction, the court "must determine whether a reasonable jury believing the government's evidence could find beyond a reasonable doubt that the government proved all the elements of the offenses").

ii. Evidence at Trial

Defendant immigrated to the United States from Ukraine in 1990 with his wife, Alla.*fn4 (Trial Tr. 146, Nov. 3, 2011 ("Nov. 3 Tr.").) In the 1990s, defendant formed the Four Brothers Construction Company, which was very successful. (Id. at 147-48.) In 2002, he began looking to invest his earnings from the construction business in other business ventures. (Id. at 39-40, 148.) He was approached by Tkach, a member of his church and a longtime family friend, about investing in an ambulance company. (Id. at 149.) Defendant agreed, and Advantage Ambulance company was formed in 2003 as a corporation wholly owned by Alla Sivchuk. (Id. at 150.) Because the Sivchuks had no knowledge of the ambulance business, they relied on Tkach to run the day-to-day operations of the company. (Id. at 150.)

Advantage Ambulance primarily transported non-emergent Medicare patients, such as dialysis patients. In 2007, 2008, and 2009, Medicare paid Advantage Ambulance approximately $2 million per year. (Trial Tr. 27-28, Nov. 1, 2011, Doc. Number 114 ("Tr. 114").) During the period that Alla Sivchuk owned Advantage Ambulance, the ...


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