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Monday, July 12, 2021


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Judge’s Comment, Procedures Did Not Render Guilty Plea Involuntary—Ninth Circuit

Opinion Says Judge Otis Wright’s Remark That Sentencing Hearing Was Not the Place to Be Contesting the Amount of the Victim’s Loss ‘May Have Been Casual or Imprudent,’ It Provides No Basis for Appeal


By a MetNews Staff Writer


A plea of guilty to conspiracy to commit health care fraud was not rendered involuntary by virtue of the District Court judge curtailing presentation of evidence at the sentencing hearing as to the amount of loss—which affected the length of the sentence—or by his commenting that a challenge to the amount claimed by the prosecution should have been made by going to trial, the Ninth U.S. Circuit Court of Appeals held on Friday.

The opinion by Circuit Judge Ronald M. Gould quotes District Court Judge Otis D. Wright II as telling defendant Ashot Minasyan:

“[I]t would seem to me that pleading guilty is just exactly the wrong thing to do, that what you need to be able to do is put on a case or at least be able to cross-examine the government’s case and contest this loss amount. But to plead guilty, you are pretty much admitting these allegations. [T]he sentencing hearing] is a strange time to try to then contest it after you have admitted to all of this wrongdoing.”

Gould’s Opinion

Gould commented:

“[W]hile the district court’s comments at sentencing—namely, that Minasyan should not have pleaded guilty if he wanted to contest the amount of loss—may have been casual or imprudent, the statements did not render his guilty plea involuntary.”

As part of a plea bargain, Minasyan waived his right to appeal except on the ground that the appeal was involuntary.

Wright sentenced Minasyan to 6½ years in prison and three years of supervised release, ordering him to pay $4,283,674 in restitution. That amount was what Medicare had paid to Fifth Avenue Home Health in Santa Monica, co-owned by Minasyan, for services that were not actually rendered or were “medically unnecessary.”

 The judge also ordered that Minasyan forfeit any interest in $172,000 that was seized by federal authorities in May 2014 and in six real properties purchased with proceeds of the fraud.

Evidentiary Hearing Denied

Minasyan and the prosecution had agreed that the total loss was between $250,000 and $9.5 million. Desiring to show that any loss attributable to him was at the low end, Minasyan sought an evidentiary hearing, which Wright denied.

“The district court gave Minasyan a fair opportunity to contest the government’s loss calculation even if it was not the full evidentiary hearing that Minasyan wanted—but to which he was not entitled,” Gould wrote. “We conclude that Minasyan’s plea was not involuntary due to the district court’s sentencing procedure and comments, nor did Minasyan’s sentence, in the context of Minasyan’s opportunities to be heard, violate his due process rights.”

Prior to the sentencing hearing, Minasyan made motions, unopposed by the prosecution, to continue that hearing to enable the preparation of reports by experts upon an examination of financial and patient records. He later moved for a substitution of counsel and to withdraw his plea.

Wright denied all motions, saying they were “an exercise of gamesmanship that has wasted the court’s time.”

Minasyan contended on appeal that the cumulative effect of those denials, coupled with Wright’s remarks, demonstrated a failure on the part of the judge to recognize the earnestness of his effort to dispute the loss amount. Gould responded that Wright “permissibly denied Minasyan’s motions, and therefore the denials do not support his voluntariness claim.”

The case is United States v. Minasyan, 19-50185.


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