USCA11 Case: 19-10676 Date Filed: 06/27/2019 Page: 1 of 83
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`_______________________________________________
`
`No. 19-10676-JJ
`In the
`United States Court of Appeals for the Eleventh Circuit
`
`UNITED STATES OF AMERICA,
`
`Appellee,
`
`v.
`
`ARMAN ABOVYAN,
`
`Appellant.
`
`On Appeal from the United States District Court
`for the Southern District of Florida
`
`Brief of the Appellant Arman Abovyan
`
`David Oscar Markus
`Mona Markus
`MARKUS/MOSS PLLC
`COUNSEL FOR APPELLANT
`40 NW Third Street, Penthouse One
`Miami, Florida 33128
`305-379-6667
`dmarkus@markuslaw.com
`________________________________________________
`
`
`
`_______________________________________________
`
`No. 19-10676-JJ
`In the
`United States Court of Appeals for the Eleventh Circuit
`
`UNITED STATES OF AMERICA,
`
`Appellee,
`
`v.
`
`ARMAN ABOVYAN,
`
`Appellant.
`
`On Appeal from the United States District Court
`for the Southern District of Florida
`
`Brief of the Appellant Arman Abovyan
`
`David Oscar Markus
`Mona Markus
`MARKUS/MOSS PLLC
`COUNSEL FOR APPELLANT
`40 NW Third Street, Penthouse One
`Miami, Florida 33128
`305-379-6667
`dmarkus@markuslaw.com
`________________________________________________
`
`
`
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`CERTIFICATE OF INTERESTED PERSONS
`AND CORPORATE DISCLOSURE STATEMENT
`
`United States v. Arman Abovyan
`Case No. 19-10676-JJ
`
`Appellant files this Certificate of Interested Persons and Corporate
`
`Disclosure Statement listing the parties and entities interested in this appeal,
`
`as required by 11th Cir. R. 26.1.
`
`Arman Abovyan
`
`Defendant/Appellant
`
`Tina Marie Barbuto
`
`Co-Defendant
`
`Dave Lee Brannon
`
`United States Magistrate Judge
`
`Alexandra Chase
`
`Assistant United States Attorney
`
`Marissel Descalzo
`
`Counsel for Co-Defendant Barbuto
`
`Robin Kaplan Eliani
`
`Counsel for Co-Defendant Barbuto
`
`David Joffe
`
`Trial Counsel for Appellant
`
`David Oscar Markus
`
`Counsel for Defendant/Appellant
`
`Donald M. Middlebrooks
`
`United States District Court Judge
`
`Ariana Fajardo Orshan
`
`United States Attorney
`
`Howard Schumacher
`
`Trial Counsel for Appellant
`
`Ann Marie Villafana
`
`Assistant United States Attorney
`
`C-1 of 1
`
`
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`STATEMENT REGARDING ORAL ARGUMENT
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`Arman Abovyan respectfully requests oral argument. This criminal trial
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`involved complex allegations of fraud against a doctor, and argument will assist
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`the Court in evaluating Abovyan’s claims.
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`i
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`TABLE OF CONTENTS
`
`CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . C-1
`
`STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . .
`
`i
`
`TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`iv
`
`STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`
`STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
`
`Course of Proceedings and Disposition in the District Court. . . . . . . . . 4
`
`Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
`
`STANDARDS OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
`
`SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
`
`ARGUMENT AND CITATIONS OF AUTHORITY. . . . . . . . . . . . . . . . . . . 31
`
`I.
`
`THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN DR.
`ABOVYAN’S CONVICTIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
`
`II. DR. ABOVYAN’S CONVICTIONS SHOULD BE REVERSED
`BECAUSE OF FUNDAMENTAL ERRORS IN INSTRUCTING
`THE JURY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
`
`III. THE DISTRICT COURT’S EVIDENTIARY RULINGS WERE
`ERRONEOUS AND UNDULY PREJUDICIAL. . . . . . . . . . . 53
`
`135 MONTHS’
`IV. DR. ABOVYAN’S SENTENCE OF
`IMPRISONMENT WAS INFIRM. . . . . . . . . . . . . . . . . . . . . . . . 58
`
`ii
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`CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
`
`CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
`
`CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
`
`iii
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`TABLE OF CITATIONS
`
`CASES:
`
`Hammerschmidt v. United States, 265 U.S. 182 (1924). . . . . . . . . . . . . . . . . . 38
`
`Middleton v. McNeil, 541 U.S. 433 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
`
`United States v. Adkinson, 158 F.3d 1147 (11th Cir. 1998). . . . . . . . . . . . 33, 36
`
`United States v. Alerre, 430 F.3d 681 (4th Cir. 2005). . . . . . . . . . . . . . . . . . . . 46
`
`United States v. Anor, 762 Fed.Appx. 707 (11th Cir. 2019). . . . . . . . . . . . . . . 62
`
`United States v. Askew, 193 F.3d 1181 (11th Cir. 1999). . . . . . . . . . . . . . . . . . 63
`
`United States v. Bagley, 537 F.2d 162 (5th Cir. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . 27
`
`United States v. Barrington, 648 F.3d 1178 (11th Cir. 2011). . . . . . . . . . 27, 28
`
`United States v. Bender, 290 F.3d 1279 (11th Cir. 2002). . . . . . . . . . . . . . . . . 27
`
`United States v. Bosch, 505 F.2d 78 (5th Cir. 1974). . . . . . . . . . . . . . . . . . . . . 50
`
`United States v. Chandler, 388 F.3d 796 (11th Cir. 2004). . . . . . . . . . . . . . . . 32
`
`United States v. Cotton, 535 U.S. 625 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . 50
`
`United States v. Dohan, 508 F.3d 989 (11th Cir. 2007).. . . . . . . . . . . . . . . . . . 27
`
`United States v. Esformes, 16-Cr-20549-RNS
`(S.D. Fla. April 1, 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53
`
`United States v. Feingold, 454 F.3d 1001 (9th Cir. 2006).. . . . . . . . . . . . . . . . 48
`
`United States v. Gamory, 635 F.3d 480 (11th Cir. 2011). . . . . . . . . . . . . . . . . 27
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`iv
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`United States v. Ganji, 880 F.3d 760 (5th Cir. 2018). . . . . . . . . . . . . . . passim
`
`United States v. Hayes, 762 F.3d 1300 (11th Cir. 2014). . . . . . . . . . . . . . . . . . 60
`
`United States v. Hernandez, 141 F.3d 1042 (11th Cir. 1998).. . . . . . . . . . . . . 35
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`United States v. Hunter, 323 F.3d 1314 (11th Cir. 2003). . . . . . . . . . . . . . 61, 62
`
`United States v. Jackson, 220 Fed. Appx. 317 (5th Cir. 2007).. . . . . . . . . . . . 38
`
`United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002). . . . . . . .
`
` 54
`
`United States v. Jones, 28 F.3d 1574 (11th Cir. 1994). . . . . . . . . . . . . . . . . . . 54
`
`United States v. Kelly, 888 F.2d 732 (11th Cir. 1989). . . . . . . . . . . . . . . . . . . . 27
`
`United States v. Kieffer, 681 F.3d 1143 (10th Cir. 2012). . . . . . . . . . . . . . . . . 63
`
`United States v. Martinez, 83 F.3d 371 (11th Cir. 1996). . . . . . . . . . . . . . . . . 34
`
`United States v. Medina, 485 F.3d 1291 (11th Cir. 2007).. . . . . . . . . . . . . . . . 38
`
`United States v. Mobley, 193 F.3d 492 (7th Cir. 1999). . . . . . . . . . . . . . . . . . . 54
`
`United States v. Moore, 423 U.S. 122 (1975). . . . . . . . . . . . . . . . . . 32, 40, 44, 48
`
`United States v. Moran, 778 F.3d 942 (11th Cir. 2015). . . . . . . . . . . . . . . . . . 31
`
`United States v. Musgrave, 444 F.2d 755 (5th Cir. 1971).. . . . . . . . . . . . . . . . 50
`
`United States v. Olis, 429 F.3d 540 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . 63
`
`United States v. Parker, 839 F.2d 1473 (11th Cir. 1988). . . . . . . . . . . . . . . . . 37
`
`United States v. Perez-Tosta, 36 F.3d 1552 (11th Cir. 1994). . . . . . . . . . . 31, 36
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`United States v. Robinson, 137 Fed. Appx. 273 (11th Cir. 2005). . . . . . . . . . 62
`
`v
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`United States v. Sepulveda, 115 F.3d 882 (11th Cir. 1997). . . . . . . . . . . . . . . 63
`
`United States v. Shaygan, 08-Cr-20112-ASG (S.D. Fla. March 13, 2009). . . 52
`
`United States v. Sjeklocha, 114 F.3d 1085 (11th Cir. 1997). . . . . . . . . . . . . . . 28
`
`United States v. Smith, 521 F.2d 957 (D.C. Cir. 1976). . . . . . . . . . . . . . . . . . . 58
`
`United States v. St. Michael's Credit Union, 880 F.2d 579 (1st Cir. 1989). . 55
`
`United States v. Tokars, 95 F.3d 1520 (11th Cir. 1996). . . . . . . . . . . . . . . . . . 27
`
`United States v. Tyson, 653 F.3d 192 (3d Cir. 2011).. . . . . . . . . . . . . . . . . . . . 32
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`United States v. Villegas, 911 F.2d 623 (11th Cir. 1990). . . . . . . . . . . . . . . . . 34
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`United States v. Willner, 795 F.3d 1297 (11th Cir. 2015).. . . . . . . . . . . passim
`
`STATUTORY AND OTHER AUTHORITY:
`
`18 U.S.C. § 1347. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 31, 49
`
`18 U.S.C. § 1349. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
`
`18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`18 U.S.C. § 3553. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
`
`21 U.S.C. § 841. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 44, 48
`
`21 U.S.C. § 846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 31
`
`28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`Fed. R. Evid. 803. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
`
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`U.S.S.G. § 1B1.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
`
`U.S.S.G. § 2B1.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 62
`
`U.S.S.G. § 2D1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`
`“Want to Reduce Opioid Deaths? Get People the Medications
`They Need,” New York Times Editorial Board, March 26, 2019. . . . . . . . . . 45
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`STATEMENT OF JURISDICTION
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`The district court had jurisdiction of this case pursuant to 18 U.S.C. §
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`3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. The final
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`judgment was entered on February 14, 2019. The appeal was timely filed on
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`February 21, 2019.
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`1
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`STATEMENT OF THE ISSUES
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`I. Whether there was sufficient evidence to sustain Dr. Abovyan’s
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`convictions.
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`II. Whether Dr. Abovyan’s convictions should be reversed because of
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`fundamental errors in instructing the jury, where the district court: (A)
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`failed to instruct jurors on the essential offense elements of healthcare
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`fraud, and (B) denied defense theory instructions.
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`III. Whether Dr. Abovyan’s convictions should be reversed based on
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`evidentiary errors including the admission of evidence related to lawful
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`gambling and improper limitations on cross-examination.
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`IV. Whether Dr. Abovyan’s 135-month sentence was impermissible, where:
`
`(A) the drug conspiracy verdict did not authorize a sentence of more than
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`five years, and (B) the sentencing court erroneously relied on an
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`intended, rather than an actual, loss theory, and failed to make findings,
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`supported by a preponderance of the evidence, that the loss amount was
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`within the scope of the joint conspiratorial agreement and reasonably
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`foreseeable to the defendant.
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`2
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`INTRODUCTORY STATEMENT
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`This case asks the Court to rectify an egregious example of the
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`criminalization of what is, at most, nothing more than simple medical
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`negligence. Dr. Arman Abovyan, a doctor who served as the medical director
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`of two substance abuse treatment centers for five months, was convicted of
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`multiple counts of healthcare fraud based on the fact that he prescribed a safe
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`drug to patients who needed it before he had the requisite license, and that he
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`permitted the centers to order more extensive drug testing than the
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`Government (and its expert) deemed appropriate. During Dr. Abovyan’s trial,
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`the Government failed to introduce a single piece of evidence that he ever
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`agreed with anyone to engage in any illegal act, that he believed his actions
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`were medically improper (much less criminal), or that he engaged in any
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`criminal activity.
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`This prosecution puts every doctor at risk that his or her medical
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`determinations may result in criminal liability if they can be second-guessed by
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`a Government expert who disagrees with the doctor’s decisions. The
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`Government’s success in obtaining a conviction on health care fraud charges
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`against this defendant, which was made possible by numerous errors that
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`3
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`turned the case into a referendum on Dr. Abovyan’s medical judgment, has
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`swung the pendulum too far.
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`STATEMENT OF THE CASE
`
`Course of Proceedings and Disposition in the District Court
`
`Dr. Abovyan was charged with offenses stemming from his brief
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`employment as medical director of two substance abuse treatment centers —
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`Reflections Treatment Center (“Reflections”) and Journey to Recovery
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`(“Journey”) — during a period of only five months in 2016. DE:45. Abovyan
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`and his co-defendant Tina Barbuto were charged with conspiracy to commit
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`healthcare fraud in violation of 18 U.S.C. §§ 1347 and 1349 (Count 1); conspiracy
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`to distribute, possess with intent to distribute, and dispense outside the scope
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`of professional practice and not for a legitimate medical purpose, controlled
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`substances
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`(amphetamine,
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`lisdexamfetamine, dextroamphetamine,
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`buprenorphine, clonazepam, lorazepam, and phenobarbital), in violation of 21
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`U.S.C. § 846 (Count 2); distribution and dispensing outside the scope of
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`professional practice and not for a legitimate medical purpose a controlled
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`substance, buprenorphine, to individuals identified as Patients #1-#7, in
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`violation of 21 U.S.C. § 841 (Counts 3-9); and possessing with intent to
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`distribute controlled substances, in violation of 21 U.S.C. § 841(a)(1) (Count 10).
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`DE:45:16-24.
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`1
`Abovyan proceeded to trial on November 26, 2018. He moved for
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`judgment of acquittal under Fed. R. Crim. P. 29 at the close of the
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`Government’s case and the close of all the evidence. DE:282:227; DE:284:88.
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`The district court denied the motion as to Counts 1-9, reserving ruling as to
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`Count 10. DE:282:238.
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`Abovyan requested jury instructions on the difference between civil
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`malpractice and criminal conduct, which were denied. DE:182; DE:283:89-90,
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`97, 100-01. The jury found Abovyan guilty on Counts 1-9 and acquitted on
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`Count 10. DE:285:3. His motion for judgment notwithstanding the verdict or
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`alternatively for new trial was denied. DE:222, 225.
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`The presentence investigation report recommended an intended fraud
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`loss amount of $11,345,741 under U.S.S.G. § 2B1.1(b)(1)(K), and, as to the
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`controlled substance conspiracy charge, a converted drug weight of at least 100
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`but less than 400 kilograms of marijuana, under U.S.S.G. § 2D1.1. PSI ¶59;
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`DE:259:2. Based on these calculations, including a multiple-count adjustment,
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`the PSI recommended a combined adjusted offense level of 33 and a guidelines
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`1
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` Barbuto pled guilty before trial. DE:161.
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`5
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`range of 135-168 months. PSI ¶¶65-68, 71, 118. But for the Count 1 conspiracy
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`conviction, Abovyan’s guideline range would have been 51-63 months. See PSI
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`¶59.
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`The Government did not oppose Abovyan’s drug quantity objection.
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`DE:259; DE:252:10. It conceded that because the jury was not given a special
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`verdict form requiring specification of a drug in the Count 2 conspiracy,
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`Abovyan was not convicted of a conspiracy to dispense a Schedule II controlled
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`substance. DE:259:17-18. Abovyan filed written objections to the PSI, which
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`the court overruled. DE:252, 257-1:9; DE:286.
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`The district court, rejecting the defense request for a sentence below the
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`guidelines range, imposed 135 months’ imprisonment, consisting of concurrent
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`120-month terms as to Counts 1-8 and a consecutive 15-month term as to count
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`9, as well as 3 years’ supervised release and $1,058,097.88 in restitution.
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`DE:267; DE:286:84, 92-94.
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`Statement of Facts
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`This case involves a criminal fraud operation perpetrated by several
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`separately-charged individuals who operated two substance abuse treatment
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`centers — Reflections (which opened in March 2015) and Journey (which
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`2
`opened in October 2016). Kenneth Chatman owned and operated Reflections
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`and Journey, although his wife was listed in corporate documents as the CEO
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`due to his prior criminal conviction. DE:278:150; DE:279:17-18; DE:282:169;
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`DE:292:81. Chatman lacked training in substance abuse treatment and mental
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`health counseling and was not a licensed medical provider. DE:278:151;
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`DE:279:31; DE:292:33. Hawkeye Wayne, the CEO of Smart Lab, paid
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`Chatman kickbacks to use Smart Lab for testing. DE:282:78-79, 83-84, 193.
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`Chatman allegedly had an “inner circle” of individuals who assisted Chatman
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`with his scheme at the centers, DE:281:259, including Barbuto (a therapist,
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`assistant clinical director, and clinical director), Brad Cohen (clinical director),
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`Stephen Gatt (a toxicology lab owner and part-owner of Journey), and Bosco
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`Vega (a sales rep for Smart Lab). Dr. Abovyan was not part of, or anywhere
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`close to, this inner circle. DE:259.
`
` Beginning this story with Chatman and his henchmen rather than Dr.
`2
`Abovyan is not a defense strategy to deflect attention; it is the way the story
`must be told, with Abovyan as little more than a footnote in the tale of crime by
`others. See Government opening (going several minutes before the first
`mention of Dr. Abovyan). DE:278:126.
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`3
`In July 2016, after firing their medical director, Chatman and Gatt
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`sought out a new medical director. After Abovyan was offered the job, he
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`visited the facility. DE:282:136, 148, 159-60. Then Abovyan and Gatt met over
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`dinner with Chatman, who explained that as medical director Abovyan would
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`be required to take care of patients, authorize drug testing, be on call, and
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`obtain a license to prescribe Suboxone for addiction treatment. DE:282:118-19.
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`There is no evidence that Dr. Abovyan was told anything whatsoever about any
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`illegal activity, that he was asked to order excessive testing, or that he
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`understood or was told that he was expected to participate in any conspiracy or
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`illegal activity. There also is no evidence that Dr. Abovyan agreed to anything
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`illegal.
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`Instead, the evidence showed that Dr. Abovyan began working at
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`Reflections, and at Journey when it opened in October 2016, and that he
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`performed his duties to the best of his ability.
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` The previous medical director was Dr. Aron Tendler. DE:278:185. On
`3
`July 11, 2016, Dr. Tendler emailed one of the testing labs which was in cahoots
`with Chatman. He provided the lab with specifications for confirmatory drug
`testing of Reflections’ patients that were inconsistent with Chatman’s scheme.
`DE:282:185-87. The lab forwarded Tendler’s email to Reflections, which
`terminated him on July 15. DE:282:188. There is no evidence that Abovyan had
`any knowledge of any of this.
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`8
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`USCA11 Case: 19-10676 Date Filed: 06/27/2019 Page: 18 of 83
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`Dr. Abovyan had no prior experience with substance abuse care. He is
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`board-certified in internal medicine, DE:280:160-61, and his employment at the
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`centers was a small part of his medical practice. His primary occupation was
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`his private medical practice, where he practiced primary care. He saw patients
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`at his offices, as well as at assisted living facilities, the hospital, and in their
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`homes. DE:281:27, 31-34, 69. Dr. Abovyan had excellent relationships with his
`
`patients. DE:281:214-15. He was extremely busy, starting his day typically at
`
`6:00 a.m., with rounds at the hospital. DE:281:39. By contrast, he provided
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`coverage at the centers only about 9 hours a week, and was personally there
`
`less than that because of his use of licensed ARNPs. DE:278:197; DE:282:121,
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`147-48.
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`Abovyan’s employment agreement stated he would be paid $11,000 a
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`month. DE:282:124, 127, 132, 156-57; DE:284:86. His earnings as medical
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`director for the centers totaled $73,600, DE:282:34, which was a small fraction
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`of his overall income during that period. DE:282:35; DE:283:150.
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`Dr. Abovyan’s personnel file contained his original signature and copies
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`of his signature, DE:279:24-25, as well as a July 15, 2016, letter stating he had
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`reviewed the previous medical director’s orders and progress notes and agreed
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`with his factual and medical recommendations. DE:278:194-95. At the outset
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`9
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`USCA11 Case: 19-10676 Date Filed: 06/27/2019 Page: 19 of 83
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`of his employment, Dr. Abovyan signed lab protocols and standing consent
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`orders for testing 2-3 times weekly. DE:278:225-26; DE:282:122-23, 189-91.
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`These standing orders provided only that a panel of 12 substances would be
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`tested for, and did not authorize large-volume testing such as those requesting
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`100 labs or more. DE:282:197-201. (According to the Government’s
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`investigating case agent, a request to test for 14 substances was a reasonable
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`request, particularly given evidence of the need to be alert to cross-drug abuse.
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`DE:279:11-13.). Dr. Abovyan told Chatman that full panel blood tests were not
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`needed, and only a basic test should be done; Gatt complied with his request.
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`DE:281:96.
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`Reflections billed for treatments it provided, which included intensive
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`outpatient programs, partial hospitalization programs, and toxicology testing.
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`DE:280:40; DE:282:216. Confirmatory testing by laboratories was billed by the
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`labs themselves. DE:282:216. Patients at the facilities signed consent forms for
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`drug testing. DE:292:42. Dr. Abovyan had no role in billing and did not see the
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`bills. See, e.g., DE:281:21, 50.
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`The case agent testified that Dr. Abovyan told the agent that he did not
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`recall exactly how many substances the tests covered, since that was directed
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`by Chatman, but that he told Chatman to make sure no improper testing was
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`10
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`USCA11 Case: 19-10676 Date Filed: 06/27/2019 Page: 20 of 83
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`ordered. DE:282:133-34, 155. Dr. Abovyan wrote prescriptions for patients at
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`Reflections when he saw them, and also pre-signed prescriptions for his nurse-
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`practitioners to fill in, but only for medications he considered basic: Suboxone,
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`Zoloft, clonodine, and clonazepam. DE:282:123-24. If Dr. Abovyan learned a
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`patient was using illegal drugs, he discharged the patient from the facility.
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`DE:282:134-35.
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`On behalf of the clinics, Dr. Abovyan visited patients and employed nurse
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`4
`practitioners who assisted him, as is permissible under Florida law. DE:282:37.
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`These nurse practitioners, two of whom were called by the Government,
`
`testified that Dr. Abovyan’s actions were appropriate and that he never
`
`indicated any illicit intent.
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`Andrea Buehler, an ARNP, testified for the Government. She worked for
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`Dr. Abovyan at Reflections, Journey, and his two private medical offices.
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`DE:281:13-14. She had a collaborative agreement with Dr. Abovyan concerning
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`her duties, which was filed annually as required. DE:281:41-42. Dr. Abovyan
`
`trained her to care for substance abuse patients, and she believed she
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` Nurse practitioners, referred to also as ARNPs, are the highest level of
`4
`nurse; among other things, they may examine patients without a doctor’s
`presence and prescribe some medications. DE:279:68; DE:280:32;
`DE:281:28-29; DE:292:38-39.
`
`11
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`USCA11 Case: 19-10676 Date Filed: 06/27/2019 Page: 21 of 83
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`“absolutely” gave them proper care. DE:281:47-48. Abovyan gave her
`
`guidelines for the treatment of detox inpatients, and also gave her written
`
`weaning protocols. DE:281:23-24, 73-74. He explained how to chart and what
`
`to look for, and told her if anyone was using drugs, they had to leave the rehab
`
`program. DE:281:48-49. He told many patients to leave the clinic for failure to
`
`comply. DE:281:49.
`
`Ms. Buehler was never involved in billing and never heard Dr. Abovyan
`
`discuss billing. DE:281:50. When she went to Reflections or Journey without
`
`Dr. Abovyan, she logged into KIPU, the facilities’ computerized records system,
`
`using Dr. Abovyan’s log-in information. DE:281:15, 19-20. She filled in
`
`prescriptions signed by Dr. Abovyan, which she believed was appropriate.
`
`DE:281:64. Dr. Abovyan sometimes filled in prescriptions himself when he was
`
`present. DE:281:65-66. When she filled in scripts, Dr. Abovyan was physically
`
`present with her or in the area; if Dr. Abovyan was not at the facility when she
`
`was there, he was available by phone, and she would call him after seeing a
`
`patient to discuss the encounter. DE:281:66. He advised her as to whether a
`
`particular medication was the right treatment for a patient. DE:281:66-67.
`
`She believed that Dr. Abovyan was concerned about writing the correct
`
`prescription to treat patients, and would tell her the appropriate type and
`
`12
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`USCA11 Case: 19-10676 Date Filed: 06/27/2019 Page: 22 of 83
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`amount of medicine to prescribe. DE:281:67. He was careful about the
`
`prescriptions he wrote, and would issue Suboxone prescriptions only as non-
`
`refill with no more than a 30-day supply to avoid misuse. DE:281:67; see also
`
`DE:29:20 (government case agent testifying all prescriptions found were non-
`
`refill). She believed Dr. Abovyan cared about and wanted the best for his
`
`patients. DE:281:69. In addition to her, three other ARPNs worked for Dr.
`
`Abovyan. DE:281:70.
`
`One of these other ARNPs was Lindsey Callaghan, who worked for Dr.
`
`Abovyan at Reflections from June or July to October 2016. DE:281:157-58, 161.
`
`Ms. Callaghan, who also was called by the Government, testified that they saw
`
`patients for several hours, two mornings weekly, taking medical history, doing
`
`physical exams, and refilling medications. DE:281:160, 162. At times, they
`
`were at Reflections daily to see patients who were actively using drugs and had
`
`to be placed on a taper to wean them off before they could be in maintenance
`
`treatment. DE:281:161-62. Callaghan filled in prescriptions that Dr. Abovyan
`
`had signed and given her. DE:281:162-63. Dr. Abovyan emailed her a
`
`document of protocols relating to drug abuse treatment that he instructed her
`
`to learn. DE:281:23-24, 166. Callaghan used the KIPU charting system while
`
`13
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`USCA11 Case: 19-10676 Date Filed: 06/27/2019 Page: 23 of 83
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`she was working at Reflections, signing in with Dr. Abovyan’s log-in
`
`information. DE:281:168-69.
`
`Another of the ARNPs, Lauren Roscoe, worked with Dr. Abovyan at
`
`Reflections from October to December 2016. DE:283:94-95, 118. Roscoe and
`
`Abovyan typically saw 6-12 patients each time they were at Reflections.
`
`DE:283:113. They took vital signs, checking blood pressure, pulse and oxygen
`
`levels; asked about medical history, chief complaint, previous addiction
`
`treatment, and what brought them to Reflections; and conducted a physical
`
`exam, using a stethoscope and listening to their heart and lungs, examining
`
`their skin, and following up on any physical complaints. DE:283:102. Dr.
`
`Abovyan was always physically present with Roscoe during patient exams,
`
`although he was not required to be there since Roscoe was authorized to
`
`examine patients independently. DE:283:102-03.
`
`For a patient who was not new, the examination would be a focused
`
`assessment of the patient’s particular complaint, taking 5-10 minutes; more time
`
`would be spent with new patients. DE:283:103. After the physical exam, they
`
`established, as a team effort, the plan of care, such as starting a new medication
`
`or refilling an existing one, doing patient education, and recommendations
`
`including follow up plans. DE:283:106-07.
`
`14
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`USCA11 Case: 19-10676 Date Filed: 06/27/2019 Page: 24 of 83
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`There were two computers in the exam room at Reflections; sometimes
`
`a computer was already logged on when Roscoe arrived, and at other times she
`
`needed Dr. Abovyan’s log-in information to gain access. DE:283:117, 122, 123-
`
`24. She inputted notes contemporaneously with the examination, and never
`
`accessed the computerized patient files outside of Reflections. DE:283:104-06,
`
`124. She testified that it is a very common and acceptable practice to have and
`
`use the doctor’s log-in. DE:283:106, 124.
`
`At the clinics, prescriptions were written and given to the nurse, not the
`
`patient, since all of the patients were drug addicts or recovering addicts; Roscoe
`
`believed this was the lawful and responsible way to handle prescriptions.
`
`DE:283:107-08. In Roscoe’s presence, Dr. Abovyan signed prescriptions which
`
`he or Roscoe would fill in. DE:283:108. Roscoe testified there was nothing
`
`wrong with her filling in the script; it is a very common practice for a nurse or
`
`even a medical assistant or secretary to fill in a prescription, which the doctor
`
`5
`then approves and signs. DE:283:108. When multiple prescriptions were
`
` In her private practice, Roscoe has seen other doctors pre-sign scripts,
`5
`including with either an original or stamped signature. DE:283:109.
`Receptionists in doctors’ offices can stamp doctors’ signatures on scripts; in that
`event, the doctor is available by phone. DE:283:109. At another physician’s
`office where she worked, it was common practice in 2016 for scripts to be
`provided to patients when doctors were not in the office; moreover, stamped
`and electronic physician signatures were used. DE:283:110-11. It is also
`
`15
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`USCA11 Case: 19-10676 Date Filed: 06/27/2019 Page: 25 of 83
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`needed for a patient, she was given a pre-signed script in Abovyan’s presence;
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`Abovyan would tell her to complete some of them, and he would complete the
`
`others. DE:283:108. That is a common practice to assist in time management.
`
`DE:283:108-09.
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`In addition to the testimony of the ARNPs, several patients testified (only
`
`two of whom were the patients in the substantive health care fraud counts).
`
`This testimony was not adverse to Dr. Abovyan. Alexandra Bernier, a former
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`heroin addict treated at Reflections, stated that Dr. Abovyan prescribed
`
`medications for her diagnosed anxiety, depression, post-traumatic stress
`
`syndrome, and sleeplessness, as well as Suboxone; she had been a substance
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`abuser for decades before coming to Reflections, and Suboxone had helped her
`
`keep off drugs at times. DE:279:155-56, 179-83. Hannah Fuller, a former
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`heroin addict, testified that Suboxone, which Dr. Abovyan prescribed for her,
`
`curbed her desire for and helped her stay off drugs. DE:282:49, 56, 64-65.
`
`Joslyn Bouche testified that Dr. Abovyan prescribed medication for her severe
`
`anxiety and remedied her sleeplessness. DE:281:223-24, 233, 245. Bernier and
`
`Fuller testified that they were not advised of test results, although both
`
`common practice to send a prescription electronically to the pharmacy, in which
`case the patient never receives it. DE:283:111.
`
`16
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`USCA11 Case: 19-10676 Date Filed: 06/27/2019 Page: 26 of 83
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`acknowledged memory problems caused by their long-term drug use.
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`DE:279:169-70, 176-77, 199; DE:282:53-54, 62-63.
`
`In addition, much of the trial consisted of the testimony of expert
`
`witnesses. The Government relied primarily on Dr. Kelly Clark, a psychiatrist
`
`and addiction medicine specialist. DE:280:4, 12. Paid $700 an hour in expert
`
`fees, she had earned $70,000 from the Government by the time of trial – about
`
`the same as what Dr. Abovyan earned in his time with the clinics. DE:280:155.
`
`She had not seen a patient clinically for four years, and acknowledged that both
`
`the law and treatment had changed during that time. DE:280:156-57. In giving
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`her opinions, Dr. Clark relied exclusively on documents and did no patient
`
`examinations or interviews. DE:280:163.
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`She testified that opioid addiction is a chronic relapse disease. DE:280:21-
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`22. Buprenorphine, which is approved for opioid addiction treatment, curbs
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`cravings and withdrawal symptoms, stops people from getting high if they are
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`using another opioid, and is safer in case of an overdose than other medications.
`
`DE:280:19-20. Taking buprenorphine cuts the risk of overdose death in half,
`
`and its prescription is rarely inappropriate. DE:28
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