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United States v. Polukhin

United States District Court, D. Minnesota

March 8, 2017

United States of America, Plaintiff,
v.
Elena Lev Polukhin, Defendant.

          John E. Kokkinen, Esq., United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.

          Rachel K. Paulose, Esq., DLA Piper LLP, Minneapolis, MN, and Robert D. Richman, Esq., St. Louis Park, MN, on behalf of Defendant.

          ORDER AMENDING JUDGMENT

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This 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.

         II. BACKGROUND

         On 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. Id.

         On June 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.

         On 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.[1]

         On 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.

         In 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.

         The 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 order.[2]

         III. DISCUSSION

         A. Polukhin's Motions to ...


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