United States District Court, D. Minnesota
E. Kokkinen, Esq., United States Attorney's Office,
Minneapolis, MN, on behalf of Plaintiff.
K. Paulose, Esq., DLA Piper LLP, Minneapolis, MN, and Robert
D. Richman, Esq., St. Louis Park, MN, on behalf of Defendant.
ORDER AMENDING JUDGMENT
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Elena Lev Polukhin's
(“Polukhin”) Motion to Reduce Restitution Amount
[Docket No. 70] and Motion to Correct Motion to Reduce
Restitution Amount [Docket No. 71], and Plaintiff United
States of America's (the “Government”) Motion
to Amend Judgment [Docket No. 72]. For the reasons stated
below, Polukhin's Motions are denied and the
Government's Motion is granted.
March 9, 2016, Polukhin, a licensed physician, entered a plea
of guilty to soliciting and receiving kickbacks in violation
of 42 U.S.C. § 1320a-7b(b)(1)(A). Change of Plea
Hr'g [Docket No. 39]; Plea Agreement [Docket No. 40]
¶ 1. Polukhin admitted that she knowingly received
kickbacks from Best Aid Pharmacy (“Best Aid”),
which was owned and managed by co-defendant Boris Rabichev
(“Rabichev”), in return for writing prescriptions
for topical pain-relief creams to patients who were Medicare
and Medicaid beneficiaries. Plea Agreement ¶¶ 1-2.
Polukhin would refer the patients to Best Aid to have their
prescriptions filled. Id. ¶ 2. Best Aid would
then submit claims for reimbursement to Medicare and Medicaid
plans for the prescriptions that Polukhin had written and
Best Aid had filled. Id. ¶ 2. In return for
Polukhin's referring patients to Best Aid to have their
pain-relief cream prescriptions filled, Best Aid made
payments to a charitable trust controlled by Polukhin.
6, 2016, the Court sentenced Rabichev to a term of 18 months
in custody followed by a two-year supervised release term.
See United States v. Rabichev, 15-cr-263, Sentencing
J. [Rabichev Docket No. 27] at 2-3. The sentence ordered
Rabichev to pay restitution in the amount of $621, 733.72,
jointly and severally with another co-defendant, Richard
Wayne Custer (“Custer”). Id. at 5-6. Of
this amount, $421, 329.19 was also joint and several
liability with Polukhin. Id. at 6. The sentencing
judgment further required Rabichev to make a lump sum payment
of $28, 000 “due immediately, ” and to pay the
remaining balance of $593, 733.72 in installment payments.
Id. at 6. Rabichev failed to make the $28, 000 lump
sum payment immediately as ordered.
December 28, 2016, the Court sentenced Polukhin to a
custodial term of 18 months followed by a one-year term of
supervised release. Sentencing J. [Docket No. 60] at 2-3. In
addition, the Court ordered payment of restitution in the
amount of $421, 329.19, to be owed jointly and severally with
co-defendants Rabichev and Custer. Id. at 6-7. The
sentencing judgment specified the amounts Polukhin owed to
each of her sixteen victims, including $52, 387.85 to UCare
and $133, 913.79 to Minnesota Department of Human Services
(“DHS”). Id. at 8-9. The sentencing
judgment further ordered Polukhin to make a lump sum payment
of $421, 329.19-the entire amount of her restitution-no later
than January 9, 2017. Id. at 7.
January 12, 2017, Polukhin filed a Motion to Reduce
Restitution Amount, seeking a $28, 000 reduction in the
amount she was ordered to pay. Polukhin argues that had
Rabichev made the $28, 000 lump-sum payment ordered by the
Court, the total amount due from Polukhin for which she is
jointly and severally liable would have been reduced by this
amount. She contends that if she now pays the restitution in
full as ordered by the Court, Rabichev will be rewarded for
failing to pay the $28, 000 the Court ordered him to pay
“immediately.” On January 13, 2017, Polukhin
filed a Motion to Correct Motion to Reduce Restitution Amount
to correct mathematical errors in her initial Motion and to
clarify that she is requesting that her restitution amount to
be reduced to $393, 329.19. The Government opposes
Polukhin's Motions, arguing there is no basis for
amending her sentence and judgment on grounds that Rabichev
has failed to make his ordered payment.
addition to responding to Polukhin's Motions, the
Government has filed a Motion to Amend Pursuant to Federal
Rule of Criminal Procedure 36. The Government seeks to amend
the judgment against Polukhin based on calculation errors in
the amounts she owes to DHS and UCare. Due to the
Government's calculation errors, the judgment overstates
the amount she owes DHS by $106, 336.67, and understates the
amount she owes UCare by $131, 273.95. Pl.'s Mem. Supp.
Mot. Amend [Docket No. 73] Ex. 1 (Boschee Aff.) ¶¶
5-12. When both errors are accounted for, the total
restitution amount ordered in the judgment is $24, 937.28
less than it should have been.
Government acknowledges that the total amount of restitution
that Polukhin must pay under her sentence cannot be
increased. Thus, the Government does not ask the Court to
increase Polukhin's total restitution. However, the
Government does request that corrections be made to the
amounts allocated to DHS and UCare under the restitution
Polukhin's Motions to ...