PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-2904

_____________

UNITED STATES OF AMERICA

v.

MATTHEW KOLODESH, 

a/k/a Matvei Kolodech,

a/k/a Michael Kolodech,

 Appellant 

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-11-cr-00464-001)

District Judge: Hon. Eduardo C. Robreno

_______________

Submitted Under Third Circuit L.A.R. 34.1(a)

April 24, 2015

Before: CHAGARES, JORDAN, and BARRY, 

Circuit Judges

(Filed: May 28, 2015)
2

Gary Green, Esq.

Sidkoff, Pincus & Green

1101 Market Street 

Suite 2700

Philadelphia, PA 19107

Jack J. McMahon, Jr., Esq.

1500 Walnut Street 

Suite 1100

Philadelphia, PA 19102

 Counsel for Appellant

Zane David Memeger, Esq.

Robert A. Zauzmer, Esq.

Emily McKillip, Esq.

Office of the United States Attorney

615 Chestnut Street 

Suite 1250

Philadelphia, PA 19106

 Counsel for Appellee

_______________

OPINION OF THE COURT

_______________
3

JORDAN, Circuit Judge

Matthew Kolodesh appeals from his conviction and 

sentence following a trial in the United States District Court 

for the Eastern District of Pennsylvania based on his 

involvement in a Medicare fraud scheme. We will affirm.

I. Background1

Kolodesh owned a home-health services company 

called Community Home Health, Inc. Around 1999, he

approached one of his employees, Alex Pugman, with the 

idea of starting a company to provide home-based hospice 

care. Pugman, who had a background in hospice care, 

agreed. Kolodesh funded the new company, which they 

named Home Care Hospice, Inc., and Pugman managed the 

day-to-day operations. Kolodesh’s wife, Malvina 

Yakobashvili, and Pugman were listed as owning equal shares 

in the company; however, Kolodesh was intimately involved 

in forming and overseeing the management of Home Care 

Hospice. 

As early as 2000 or 2001, Kolodesh, Pugman, and

Pugman’s wife, Svetlana Ganetsky, who was also employed 

 

1 The following general background information is 

supplemented by additional facts as they relate to each 

argument raised on appeal. Because Kolodesh was convicted 

after a jury trial, “we must defer to the jury’s verdict and view 

the evidence in the light most favorable to the government. 

Therefore, we recount the government’s version of the facts.” 

United States v. Serafini, 233 F.3d 758, 763 n.4 (3d Cir. 

2000) (citation omitted).
4

by Home Care Hospice, began giving gifts and cash 

“kickbacks” to doctors in exchange for patient referrals. 

(App. at 979-82.) In addition, at Kolodesh’s suggestion, 

Pugman placed some doctors or their employees on the Home 

Care Hospice payroll with sham job titles. Those sham 

employees were then issued paychecks, in exchange for 

patient referrals. 

About 90% of the revenue generated by Home Care 

Hospice came from Medicare reimbursements. Medicare, as 

is well known, is a federal health benefits program providing 

financial assistance to senior and disabled citizens to cover 

medical costs. Fischer v. United States, 529 U.S. 667, 671 

(2000). “Medicare attains its objectives through an elaborate 

funding structure,” id. at 673, one aspect of which involves 

reimbursement to health care providers for medical treatment 

costs incurred in furnishing services to Medicare recipients,

id. at 677, 680. Providers are reimbursed by the Centers for 

Medicare and Medicaid Services (“CMS”) through a “fiscal 

intermediary,” which is a private entity that contracts with 

CMS to help it administer the Medicare program by 

determining payment amounts and making payments. 42 

U.S.C. §§ 1395h(a), 1395kk-1(a); 42 C.F.R. § 405.902; see 

also Fischer, 529 U.S. at 677.

At some point, Home Care Hospice began to submit to 

CMS fraudulent claims for reimbursement. Medicare 

provides reimbursement only for hospice patients certified as 

terminally ill and places time limits on the validity of such 

certifications, 42 C.F.R. §§ 418.21-.22, but, at Kolodesh’s 

suggestion, Home Care Hospice began submitting 

reimbursement claims for patients who did not qualify for 

hospice care. Kolodesh and Pugman had the employees of
5

Home Care Hospice falsify patient records to conceal the 

fraud. Home Care Hospice employees also falsified records 

to show patients as eligible for and receiving continuous care 

– a more time-intensive and thus more expensive level of care 

– when those patients were neither eligible for nor received 

such care. 

To surreptitiously extract value from Home Care 

Hospice, Kolodesh and Pugman would, among other things, 

have contractors, such as Alexy Drobot, the person who 

serviced the copy machine for the business, submit fake 

invoices that Home Care Hospice would pay, and then the 

contractor would give most of the money to Kolodesh and 

Pugman, while keeping a portion for himself. 

Kolodesh, Pugman, Ganetsky, and a number of others 

were charged for their roles in the scheme to defraud 

Medicare. Kolodesh in particular was charged with one count 

of conspiracy to defraud a health care benefit program, in 

violation of 18 U.S.C. § 1349, twenty-one counts of healthcare fraud, in violation of 18 U.S.C. § 1347, two counts of 

mail fraud, in violation of 18 U.S.C. § 1341, and eleven 

counts of money laundering, in violation of 18 U.S.C. § 1957. 

At the conclusion of a five-week trial, in which Pugman and 

Ganetsky testified for the government after having pled 

guilty, the jury convicted Kolodesh on all counts. Kolodesh 

filed a motion for a new trial and, later, a supplemental 

motion for a new trial, both of which the District Court 

denied. On May 28, 2014, the District Court sentenced him

to a total of 176 months’ imprisonment, with three years of 

supervised release. The Court also ordered restitution in the 

amount of $16.2 million. Kolodesh filed this timely appeal.
6

II. Discussion2

The arguments on appeal focus on allegations of

prosecutorial misconduct, certain evidentiary issues, and 

supposed errors in responding to a request from the jury and 

in sentencing.3 We address each in turn.

 

2 The District Court had original jurisdiction under 18 

U.S.C. § 3231; we have appellate jurisdiction pursuant to 28 

U.S.C. § 1291.

3

In support of the arguments raised in his opening 

brief, Kolodesh raises several new contentions in his reply 

brief. Those are waived and we do not address them further. 

See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) 

(“It is well settled that an appellant’s failure to identify or 

argue an issue in his opening brief constitutes waiver of that 

issue on appeal.”).
7

A. Prosecutorial Misconduct4

Kolodesh argues that the government committed 

prosecutorial misconduct in two ways. First, he says the 

prosecutor improperly introduced and repeatedly referred to

an inaccurately transcribed, irrelevant, and unduly prejudicial

portion of a recorded conversation between Kolodesh and 

Pugman. Second, he says the prosecutor improperly elicited

testimony about Russian stereotypes, which undermined the 

fairness of the trial. 

1. Transcript of Wiretapped Conversations

At trial, the government relied heavily on transcripts of 

conversations that had been recorded through wiretaps that 

the FBI placed at Home Care Hospice. One such 

 

4 Kolodesh did not lodge a contemporaneous objection 

to the prosecutor’s conduct; rather, he raised the issue for the 

first time in his motion for a new trial. We therefore review 

the District Court proceedings for plain error insofar as this 

argument is concerned. United States v. Brennan, 326 F.3d 

176, 188 (3d Cir. 2003). Under that standard, “an appellate 

court may, in its discretion, correct an error not raised at trial 

only where the appellant demonstrates that (1) there is an 

error; (2) the error is clear or obvious, rather than subject to 

reasonable dispute; (3) the error affected the appellant’s 

substantial rights, which in the ordinary case means it 

affected the outcome of the district court proceedings; and (4) 

the error seriously affect[s] the fairness, integrity or public 

reputation of judicial proceedings.” United States v. Marcus, 

560 U.S. 258, 262 (2010) (internal quotation marks omitted) 

(alteration in original).
8

conversation between Kolodesh and Pugman related to a 

letter that a Medicare fiscal intermediary, Cahaba 

Government Benefit Administrators, LLC (“Cahaba”), sent to 

Home Care Hospice. The letter requested patient data for the 

2006-2007 fiscal year to determine whether Home Care 

Hospice’s claims had exceeded the cap for new patients, the 

cap being a limit on the total annual amount CMS would 

reimburse for each hospice patient. The letter requested the 

number of new patients admitted during a defined period, but,

depending on how the letter was interpreted, the period could 

be understood to be twelve or thirteen months. Knowing that 

they had overbilled Medicare, Kolodesh and Pugman decided 

to submit thirteen months of data and to misrepresent several 

patients as new when they had been previously discharged but 

since readmitted. During the recorded conversation, 

Kolodesh said to Pugman, “We have to f*** them over this 

time, one more time and be smart about it ... .” (App. at 

1261.) The government referred to this comment twice in its 

opening statement and four times in its closing argument. 

Kolodesh did not object to any of those references.

5

Calling his remark the “F*** Medicare Statement,” 

Kolodesh now argues that the translation and transcription of 

it, which was originally in Russian, was inaccurate. (Opening 

Br. at 19.) He also says that the government should have told 

the jury that the statement did not appear in the original 

transcription of the conversation. According to Kolodesh, the 

failure to get a good translation and the failure to tell the jury 

that his F*** Medicare Statement appeared only in the later 

 

5 Kolodesh did object to questions to Pugman about 

what Kolodesh meant, but not to the admissibility of the 

statement itself or the government’s use of that statement. 
9

transcription constitute prosecutorial misconduct. He seems 

to forget, however, that he stipulated at trial to the truth and 

accuracy of the transcripts. He thus invited any error and 

cannot complain now. United States v. Stewart, 185 F.3d 

112, 127 (3d Cir. 1999) (limiting plain-error review to errors 

that were not invited); see also United States v. Console, 13 

F.3d 641, 660 (3d Cir. 1993) (“A defendant cannot complain 

on appeal of alleged errors invited or induced by himself, 

particularly where, as here, it is not clear that the defendant 

was prejudiced thereby.” (internal quotation marks omitted)).

Kolodesh also argues that the government’s reliance 

on the F*** Medicare Statement constitutes misconduct 

because it was irrelevant to the crimes charged in the 

indictment. On the contrary, though, his crude and concise 

comment was directly relevant to the twenty-one counts of 

health care fraud. It helped establish the fraudulent nature of 

the claims his company submitted and his mental state in 

causing those submissions. 

The statement was also relevant to the charged 

conspiracy. Among the overt acts supporting that charge, the 

indictment listed the obstruction of a Medicare audit in early 

2007. That 2007 audit was separate from the later inquiry by 

Cahaba that prompted the F*** Medicare Statement during

the recorded conversation. In February 2007, Cahaba sent 

Home Care Hospice a letter notifying it that Cahaba would 

conduct a prepayment audit for twenty to forty claims 

covering a portion of the 2005-2006 fiscal year. Kolodesh 

directed Pugman to bring one of their field nurses into the 

office and pay her specifically to assist in changing patient 

records so that they would appear to be compliant. As a 

result, the audit led to the denial of only two claims out of 
10

twenty. Kolodesh’s statement, “‘We have to f*** them over 

this time, one more time and be smart about it ...’” (App. at 

1261 (emphasis added)), is relevant to establishing the 

fraudulent nature of Home Care Hospice’s response to the 

2007 audit, as well as being relevant to Kolodesh’s 

corresponding mental state and to the existence of an 

agreement to defraud Medicare. Thus, the District Court did 

not plainly err in permitting Kolodesh’s own words to be 

admitted against him and allowing the government to refer to 

them freely.

6

2. Russian Stereotype Testimony

Kolodesh argues that the government committed 

prosecutorial misconduct by repeatedly eliciting testimony 

from witnesses that Russians “game the system,” which 

 

6 Kolodesh also makes reference to Rules 403 and 

404(a) of the Federal Rules of Evidence. Any argument 

based on improper character evidence under Rule 404(a) is 

waived due to the cursory nature of the reference to it in the 

brief. See United States v. Hoffecker, 530 F.3d 137, 162 (3d 

Cir. 2008) (noting parenthetically that “[a]n issue is waived 

unless a party raises it in its opening brief, and for those 

purposes a passing reference to an issue will not suffice to 

bring that issue before this court”); see also Fed. R. App. P. 

28(a)(8). Kolodesh’s Rule 403 argument – that the 

inflammatory nature of the single instance of profanity 

rendered the comment unfairly prejudicial – fails, particularly 

in light of its probative value. Cf. United States v. Pirani, 406 

F.3d 543, 555 (8th Cir. 2005) (en banc) (concluding that tape 

recording where defendant was “swearing expressively” was 

not unfairly prejudicial).
11

testimony the government then used to “assert to the jury that 

Kolodesh must be guilty because ... [he] was born in 

Russia.”7 (Opening Br. at 37.) He misstates the record. 

First, the prosecutors did not elicit a majority of the 

statements of which Kolodesh complains; rather, those

references to Russians were offered by witnesses without any 

prompting by the government.8 And statements that arguably 

were elicited by the prosecutors are relatively innocuous in 

the context of this case. The nurses at Home Care Hospice

 

7 Kolodesh was originally from the Georgian Soviet 

Socialist Republic, but he casts his argument on appeal 

broadly to include not only “Russian ethnic stereotypes” but 

also stereotypes about “native Russians,” “Russian speakers,” 

and, more generically, the “Russian community” in the 

United States, with which Kolodesh was identified at trial. 

(Opening Br. at 37, 38.) 

8 For example, one of the prosecutors engaged in the 

following exchange with Pugman:

Q Are you familiar with the concept of a 

continuous care schedule?

A Yes.

Q What is that?

A So, if Irina as coordinator on Russian 

team would come to me and by that time, 

let’s say, in the year 2007-2008, 

especially nurses on the Russian team, 

they loved continuous care. Continuous 

care meant a lot of money, of course, 

some work in terms of documenting, but 

then getting paid for this.

(App. at 1016-17.)
12

were divided into a “Russian team” and an “English team,”

with each team focusing on patients who spoke those 

respective languages. (App. at 956-58.) When asked which 

team was involved with most of the fraudulent claims, 

Pugman stated matter-of-factly that it was the Russian team, 

without elaborating on the reasons. When Ganetsky was 

asked whether any nurses refused to participate in the fraud, 

she responded, “None of the Russian nurses had a problem 

with fabricating charts.” (App. at 2531.) But she 

immediately followed with the statement that, “[o]n the 

English team, there was a nurse who refused to participate,” 

making it clear that participation in the fraudulent scheme did 

not break down strictly along ethnic, linguistic, or cultural

lines.9 (Id.; see also id. at 1031-32 (Pugman testifying that “a 

couple of nurses” refused to participate, without specifying 

which team, and stating by way of illustration that if he 

approached a nurse on the English team who refused, he 

would simply approach another nurse on the English team 

and offer to pay her double to do it).) In another instance 

cited by Kolodesh, Pugman stated that Kolodesh told him 

“how the marketing is done in [the] Russian community.” 

(App. at 963.) When the prosecutor asked for further details, 

Pugman recounted Kolodesh’s explanation of how he would 

provide doctors cash kickbacks for referrals. Yet that 

testimony must be considered in the context of other 

evidence, such as Pugman’s testimony that both “Russian”

and “American” doctors received kickbacks for giving 

referrals, though the former preferred cash kickbacks while 

 

9

If the fraudulent activity had broken cleanly on such 

lines, that would be a matter of fact, not bias. That it did not 

do so simply reduces any force in the argument that there was 

a risk that the jury would succumb to prejudice. 
13

the latter preferred to be placed on the payroll.10 (App. at 

1214.) 

The government did not invoke Russian stereotypes in 

its opening statement or closing argument to the jury. The 

only references to ethnicity or language groups came in 

closing argument and involved a reference to how each group 

of doctors – Russian speakers and English-only speakers –

preferred to receive kickbacks and a reference to a statement 

by Ganetsky that she believed the co-conspirators would be

suspected of fraud because they were Russians. The 

prosecutor used the latter statement not to prove that Russians 

were predisposed toward fraudulent activity, but to suggest 

that Ganetsky, Pugman, and Kolodesh believed that Home 

Care Hospice was about to come under closer scrutiny, and 

that their subsequent efforts to discharge large numbers of 

inappropriate patients indicated knowledge of the fraudulent 

nature of their actions. Thus, the government did not, as 

Kolodesh alleges, “broadcast” Russian stereotypes to the jury. 

(Opening Br. at 40.) Viewed in the context of the evidence 

presented at trial, the prosecutors’ questions and statements 

do not constitute misconduct, nor was it plain error for the 

District Court to permit them.

11

 

10 The final statement Kolodesh cites that was actually 

elicited by the prosecutors was Kolodesh’s own comment that 

he is “savvy ... like all Russians.” (App. at 1121.) But the 

context of Kolodesh’s statement indicates that he was 

referring to why he prefers the cash-basis accounting method 

to the accrual-basis method; he was not referring to fraudulent 

activity.

11 Kolodesh further argues that testimony concerning 

Russians was inappropriate because none of the witnesses 
14

B. Evidentiary Issues12

Next, Kolodesh alleges a series of evidentiary errors; 

namely, the District Court’s exclusion of allegedly 

exculpatory medical evidence, its failure both to exclude 

evidence of uncharged wrongful acts and to allow Kolodesh 

to rebut that evidence, and its admission of conversations 

relating to his attempt to open an overseas bank account.

 

were qualified “as expert witnesses on the propensity of 

Russian people to commit crimes.” (Opening Br. at 39.) 

That argument is frivolous. When Ganetsky attempted to 

testify as to how business was conducted at “other Russian 

agencies,” Kolodesh objected and that objection was 

sustained. (App. at 2532.) Otherwise, the testimony 

Kolodesh cites all involved witnesses explaining the facts of 

this case based on personal knowledge. See Fed. R. Evid. 701 

(stating that opinion testimony of a lay witness is permitted if, 

among other things, it is “rationally based on the witness’s 

perception”). Kolodesh also mentions a litany of other 

evidentiary rules that were supposedly violated by admitting 

testimony that he says involved Russian stereotypes. Those 

arguments are not meaningfully briefed and are thus waived. 

Fed. R. App. P. 28(a)(8); Hoffecker, 530 F.3d at 162.

12 “Generally, we review evidentiary rulings for abuse 

of discretion, but when no objection is made at trial we 

review for plain error only.” United States v. Brink, 39 F.3d 

419, 425 (3d Cir. 1994) (citation omitted).
15

1. Exclusion of Evidence of Medical 

Condition

Kolodesh argues that the District Court abused its 

discretion by preventing him from countering Pugman’s 

testimony that Kolodesh met him at the office almost daily. 

Kolodesh says he had evidence that he was homebound due 

to illness from 2003 to 2005. He contends that, because the 

illegal activity began in earnest in 2003, the excluded 

evidence would have provided “exculpatory alibi testimony”

showing that he “was physically too ill to be involved in the 

operation of [Home Care Hospice]” at that time. (Opening 

Br. at 42.) If the Court erred in this respect – and it appears it 

did – the error was harmless.

Kolodesh called his wife, Yakobashvili, as a witness 

and attempted to have her testify as to his health. The District 

Court ruled that Yakobashvili had personal knowledge to

testify as to “whether he got up in the morning and went or 

left the house,” but testimony that illness was the reason he 

could not go to work would be hearsay. (App. at 4275.)

When Yakobashvili repeatedly ignored the scope of defense 

counsel’s questions and testified not only that Kolodesh was 

“[n]ot really” going into work at Community Home Health, 

but that the reason was that he was “very sick,” the District 

Court cut off questioning and ordered defense counsel to 

move on. (App. at 4276.)

“Testimony that conveys a witness’s personal 

knowledge about a matter is not hearsay.” United States v. 

Vosburgh, 602 F.3d 512, 539 n.27 (3d Cir. 2010). The 

proffered testimony could be understood to establish that 

Yakobashvili had personal knowledge that her husband was 
16

ill in some way and that the illness had an effect on his ability 

to work. That testimony could certainly have been subjected 

to close scrutiny under cross-examination, but her 

impressions of her husband’s health and capacity to work 

were not hearsay.13 However, even if Kolodesh had been 

allowed to pursue that line of questioning, it would not have 

affected the outcome of the trial. We are quite sure of that. 

See United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 

1995) (en banc) (stating that an error is harmless “when it is 

highly probable that the error did not contribute to the 

judgment,” which “requires that the court possess a sure 

conviction that the error did not prejudice the defendant” 

(emphasis and internal quotation marks omitted)).

Kolodesh wanted Yakobashvili to testify as to his 

health between 2003 and 2005. The incriminating evidence

that Kolodesh identifies as being undermined by such

testimony, however, refers to Kolodesh’s almost-daily office 

visits with Pugman during 2000 and 2006. Elsewhere, 

Pugman testified that he and Kolodesh had “always” been in 

“communication” on a daily basis, including in 2003 (App. at 

1051), and that some of their conversations took place over 

the phone. Furthermore, Pugman testified that, starting 

sometime in 2004, he and Kolodesh began having meetings 

after business hours in Kolodesh’s home, though “rarely” in 

Pugman’s home because Kolodesh “was more comfortable” 

in his own house. (App. at 967.) While Pugman also testified 

that he and Kolodesh “[s]ometimes, [but] not that often,” met 

 

13 Yakobashvili’s attempt to identify the particular 

illness that her husband had may be another matter. But the 

District Court could have limited that testimony without 

excluding all reference to Kolodesh’s health. 
17

at Community Home Health during 2004 (App. at 968), that 

testimony comports with Yakobashvili’s testimony that in 

2004 – in the midst of the period that she testified her 

husband was ill – Kolodesh had a meeting with Pugman, 

Ganetsky, and Yakobashvili at Community Home Health.

14

Because Yakobashvili’s proffered testimony did not 

demonstrate that Kolodesh was not involved in the operation 

of Home Care Hospice during 2003 to 2005, it failed to

contradict Pugman’s testimony or to materially weaken his 

credibility. The decision to exclude Yakobashvili’s testimony 

about Kolodesh’s illness was, therefore, harmless.

2. Other-Acts Evidence Regarding 

Community Home Health

Kolodesh argues that the District Court erred in not 

sua sponte excluding testimony by Pugman and Ganetsky that 

employees at Community Home Health engaged in certain 

uncharged acts of fraud. Pugman testified that he learned 

how to fraudulently alter charts in preparation for an audit 

while working at Community Home Health. He said that the 

director of nursing would instruct him to “fix[]” the charts, 

but if, for example, he refused to come in on the weekend to 

do so when he had other plans, he would get a call from 

Kolodesh urging him to come in and help. (App. at 1047.)

 

14 Kolodesh also claims that Pugman testified that 

Kolodesh “regularly came to [Home Care Hospice] to review 

the books.” (Opening Br. at 41.) But what Pugman actually 

said is that Kolodesh came to Home Care Hospice to review 

the company’s books “[o]n [an] as-needed basis.” (App. at 

978.) Furthermore, Pugman provided no timeframe for that 

statement. 
18

Similarly, Ganetsky testified that, when she was working at 

Community Home Health, Kolodesh instructed her “on 

several occasions” to fabricate records for his mother-in-law, 

indicating that she received services that were, in fact, never 

provided.

15

 (App. at 2605.) Ganetsky also testified that 

Kolodesh told Pugman that he had “several ghost employees”

on the payroll at Community Home Health, and that the same 

kind of fraud should be undertaken at Home Care Hospice. 

(App. at 2507.)

Evidence of uncharged acts is admissible if the 

following requirements are met: “First, the evidence must be 

offered for a proper purpose under Rule 404(b)[ of the 

Federal Rules of Evidence]; second, the evidence must be 

relevant under Rule 402; and third, the probative value of the 

evidence must outweigh its potential for unfair prejudice 

under Rule 403.” United States v. Ciavarella, 716 F.3d 705, 

 

15 Kolodesh further complains of testimony that, on 

behalf of Home Care Hospice, Ganetsky entered into 

unlawful kickback arrangements with Community Home 

Health staff. That testimony, though, refers to illegal actions 

that are part of the crimes charged – the indictment 

specifically mentions the kickback scheme as a method of 

enrolling inappropriate hospice patients in Home Care 

Hospice. Such testimony does not, therefore, relate to 

evidence of uncharged wrongs, and, even if it did, it would be 

intrinsic to the charged offense. United States v. Gibbs, 190 

F.3d 188, 217 (3d Cir. 1999) (“Rule 404(b), which proscribes 

the admission of evidence of other crimes when offered to 

prove bad character, does not apply to evidence of uncharged 

offenses committed by a defendant when those acts are 

intrinsic to the proof of the charged offense.”).
19

728 (3d Cir. 2013). The District Court did not plainly err in 

admitting the testimony of Pugman’s and Ganetsky’s 

experiences at Community Home Health. The testimony was 

not offered as evidence of Kolodesh’s character as a 

defrauder in order to show that he acted in accordance with 

that character at Home Care Hospice. See Fed. R. Evid. 

404(b)(1). Rather, it was offered as circumstantial evidence 

of Kolodesh’s knowledge of the fraudulent activity at Home 

Care Hospice. In his opening statement, defense counsel 

asserted that Kolodesh was unaware of the fraudulent 

practices at Home Care Hospice, and that the scheme was 

concocted and executed by Ganetsky and Pugman. Counsel

asserted that, in contrast, Kolodesh ran Community Home 

Health as a legal, legitimate business. In light of the defense

theory of the case, the relevance of the government’s 

evidence is clear: Kolodesh knew what fraudulent practices 

looked like – indeed, he taught them to Pugman and Ganetsky

– and if Kolodesh was as intimately involved in Home Care 

Hospice as Pugman testified, he certainly would have known 

of the fraudulent conduct. Given the relevance of the 

complained-of evidence, we cannot say it was unfairly 

prejudicial, especially when seen through the lens of plainerror review.

Kolodesh also argues that he should have been allowed 

to rebut that evidence by offering testimony about how he 

operated Community Home Health after Pugman left that 

company in 2001. At trial, Kolodesh sought to call three 

witnesses who worked at Community Home Health to 

counter the government’s evidence that he had instructed 

employees to fabricate records. The District Court allowed 

him to call the witnesses but limited their testimony to events 

“up to 2001,” when Pugman left to work full time at Home 
20

Care Hospice, because the government’s evidence had been 

similarly limited. (App. at 4111.) The Court stated, however, 

that it would revisit its ruling if Kolodesh could demonstrate 

that the government’s evidence relative to Community Home 

Health went beyond 2001. Defense counsel responded that 

Ganetsky testified about her experience at Community Home 

Health up until about 2003 or 2004 , but he agreed to put on 

his witnesses and limit their testimony to 2001 and earlier,

and then bring the witnesses back later “if [he felt] it’s that 

essential to bring them back.”16 (App. at 4114.) The 

witnesses then testified that, during the 1999-2001 time 

period, Kolodesh never instructed them to fabricate records. 

Defense counsel also followed up with the first of the three 

witnesses in a way that extended the testimony beyond 2001:

Q And that was the whole time that you 

worked there, right? 

A Yes.

Q And you still work there now, right?

A Yes.

(App. at 4141.) The government did not object, though it 

objected to a similarly broad question posed to the second 

witness. 

 

16 Defense counsel also added, “[I]n reality, I don’t 

think it makes a whole lot of difference.” (App. at 4114.) 

However, it is unclear whether that statement was a 

concession as to the value of additional testimony or a 

reference to the logistical matter of whether to put witnesses 

on then or after having had an opportunity to review 

Pugman’s and Ganetsky’s testimony. 
21

The District Court acted well within its discretion by 

allowing Kolodesh to rebut the government’s evidence while

partially limiting the temporal scope of the testimony. To 

prevent the trial about fraudulent practices at Home Care 

Hospice from devolving into a side trial about fraudulent 

practices at Community Home Health, the Court’s ruling was 

entirely reasonable. But, even if we were to conclude that the 

District Court abused its discretion, its ruling was harmless. 

Kolodesh’s witnesses testified that he never asked them to 

doctor any charts, and one witness testified to that fact well 

beyond the 2001 limit. We are fully persuaded that the 

admission of additional testimony about Kolodesh’s practices 

at Community Home Health after 2001 would not have 

affected the outcome of the case. See Zehrbach, 47 F.3d at 

1265 (setting forth test for harmless error).

3. Relevance of Conversations Regarding 

Overseas Bank Accounts

The final evidentiary challenge Kolodesh advances is 

to the relevance and prejudicial effect of extensive recorded 

conversations that referred to his opening a Swiss bank 

account. Kolodesh argues that evidence of foreign 

investments is “generally inadmissible” because of the 

negative perception in the public’s mind linking such 

accounts to criminal activity. (Opening Br. at 47.) Yet the 

case Kolodesh cites for that proposition does not support it. 

Rather, the case simply applied the standard rules relating to 

relevance and unfair prejudice, with the result being the 

approval of admission of evidence of a secret Swiss bank 

account. United States v. Friedland, 660 F.2d 919, 929 (3d 

Cir. 1981); cf. United States v. Udeozor, 515 F.3d 260, 264-

65 (4th Cir. 2008) (“Rule 403 is a rule of inclusion, generally 
22

favoring admissibility ... .” (brackets and internal quotation 

marks omitted)). Here, Pugman testified that he, Ganetsky, 

and Kolodesh discussed the possibility of moving money 

overseas “to protect our money ... from the government,”

after they had received a letter from Cahaba requiring Home 

Care Hospice to repay over $2.6 million in reimbursements

that had exceeded the per-patient cap for the 2006-2007 fiscal 

year. (App. at 1280.) Although Cahaba retracted the letter 

and at trial the government conceded that the letter was 

prompted by “a bookkeeping error” (App. at 4399), which

Home Care Hospice corrected, the government argued – and 

the testimony supports – that the letter prompted Kolodesh 

and his co-conspirators to discharge several patients and 

discuss the possibility of moving money overseas because 

they were aware of fraudulent activity that would be detected 

if Cahaba continued to scrutinize Home Care Hospice. In one 

of the recorded conversations, Kolodesh indicated that he 

wanted to put money in a Swiss bank account, but he wanted 

to avoid one particular bank because “[it] reports everything 

to the American government.” (App. at 1284.)

The recorded conversations were thus relevant as 

circumstantial evidence of Kolodesh’s knowledge that his 

actions were fraudulent and that he risked losing his money as 

a result. They were also relevant as circumstantial evidence 

of knowledge regarding the money laundering charges. 

Although the discussions about possibly putting money into 

Swiss accounts was not part of those charged offenses, the 

conversations provided evidence of Kolodesh’s intent to 

maintain access to criminally derived property and conceal 

such transactions from the government. The mere possibility 

of a negative inference regarding Swiss bank accounts did not 
23

substantially outweigh the probative value of the recordings. 

Thus, the District Court did not plainly err in admitting them. 

C. Response to Jury’s Request17

Kolodesh argues that the District Court erred in failing 

to provide the jury with transcripts of testimony that the jury

requested and, further, in failing to suspend jury deliberations 

until those transcripts could be provided. After the jury began 

deliberating, it sent a note asking for a transcript of Pugman’s 

testimony, “both direct and cross,” and noting that, “[i]f 

possible,” the transcript “may be edited to cover only 

testimony regarding continuous care.” (App. at 4611.) The 

jury requested the same for Ganetsky’s testimony and a full 

transcript for the testimony of Cecilia Wiley, Home Care 

Hospice’s office manager. After obtaining the agreement of 

counsel, the District Court instructed the jury that it would not 

be possible to provide only the portions of the transcript 

relating to continuous care. The Court also noted the length 

of the full testimony for Pugman and Ganetsky and told the 

jury it had two options: it could either rely on its recollection 

of the testimony or “request the entire transcript of Ganetsky 

and Pugman or either one or both.” (App. at 4622.) The 

Court then sent the jury back to decide what it wanted to do. 

The record is not entirely clear, but the jury may have sent a 

note back requesting the full transcript of Pugman’s and 

Wiley’s testimonies, though not Ganetsky’s. (See App. at 

 

17 Because Kolodesh failed to raise a contemporaneous 

objection, we review for plain error. United States v. 

Salahuddin, 765 F.3d 329, 337 (3d Cir. 2014), petition for 

cert. filed, 83 U.S.L.W. 3558 (U.S. Dec. 2, 2014) (No. 14-

654).
24

4623-26 (defense counsel discussing all three witnesses and 

indicating that the jury had requested Wiley’s testimony 

twice); id. at 4630 (District Court stating when jury returned, 

“I have received your request for the transcripts of Alex 

Pugman and Cecilia Wiley”).) In any event, after discussing 

the matter further with counsel, the District Court instructed 

the jury that a transcript of Wiley’s testimony was not 

available but that the jury could rely on its recollection or 

come back into court and have the audio recording of the 

testimony played in its entirety. “As to Alex Pugman’s 

transcript,” the Court explained, “that is available and it will 

be delivered to you. It may take a little bit of time because it 

has to be edited to take the sidebars out of the transcript that 

has been developed.” (App. at 4631.) Before sending the 

jury back to the jury room, the District Court summarized, 

“So if possible, continue your deliberation on these and other 

issues as you wish while the Pugman transcript is being 

edited, and as far as Wiley is concerned, those are the choices 

that you have.” (Id.) Just over two hours later, the jury 

returned a verdict. 

As the foregoing record indicates, the District Court 

did not fail to make the transcript or recordings available to 

the jury; it expressly told the jury that it had a choice as to 

how to proceed regarding the Wiley testimony, that the 

Pugman transcript would be given as soon as it was available, 

and that it was free to continue deliberation as it wished.18 

 

18 We reject Kolodesh’s contention that, by failing to 

mention Ganetsky’s testimony when the jury returned, the 

District Court tacitly rejected the jury’s request for her 

testimony. As noted above, the jury appears to have 

withdrawn that request. But even if that reading of the record 
25

That the jury ultimately chose to rely on its recollection of the 

witnesses’ testimonies does not indicate that the Court should 

have halted proceedings. The handling of such matters is 

within the “broad discretion” of the trial court, United States 

v. Bertoli, 40 F.3d 1384, 1400 (3d Cir. 1994) (internal 

quotation marks omitted), and how the Court proceeded in 

this instance was not in any way an abuse of that discretion, 

let alone a problem rising to the level of plain error.

D. Sentencing

Finally, Kolodesh challenges the procedural and 

substantive reasonableness of his sentence, including the 

District Court’s restitution order.

 

is inaccurate, we do not believe the jury would have 

interpreted the District Court’s comments as a reversal of the 

earlier instruction to the jury that it could rely on its own 

recollection of Ganetsky’s testimony or request a full 

transcript. 
26

1. Alleged Procedural Error19

First, Kolodesh argues that the government did not 

establish that the health care fraud in this case resulted in a 

$16.2 million loss, and, therefore, the twenty-level lossenhancement imposed under the U.S. Sentencing Guidelines 

was inappropriate. See U.S.S.G. § 2B1.1(b)(1)(K). An agent 

who worked on the case testified at sentencing that he 

calculated the loss based on Pugman’s and Ganetsky’s 

testimony as to the percentage of continuous care claims that 

were fraudulent, 90-99.5%, and the percentage of patients 

who did not qualify even for non-continuous hospice care, 

30-33%. Using the lower estimates, the agent multiplied 

those percentages by the respective dollar amounts of claims 

submitted between 2003 and 2008, $1.7 million for 

 

19 In United States v. Flores-Mejia, 759 F.3d 253 (3d 

Cir. 2014) (en banc), we concluded that a defendant must 

object after a sentence is pronounced to preserve a claim 

based on “failure to give meaningful consideration” to the 

defendant’s objections. Id. at 256. That rule, however, does 

not apply to sentences such as Kolodesh’s that were entered 

before Flores-Mejia was decided. Id. at 259. Furthermore, 

Kolodesh does not challenge the adequacy of the District 

Court’s consideration of the objections he raised. He instead 

challenges the District Court’s application of the Sentencing 

Guidelines, and in particular the Court’s factual findings in 

support of the Guidelines calculations it made. Therefore, our 

review is for abuse of discretion. United States v. Wise, 515 

F.3d 207, 217 (3d Cir. 2008). “[A] district court will be held 

to have abused its discretion if its decision was based on a 

clearly erroneous factual conclusion or an erroneous legal 

conclusion.” Id. 
27

continuous care and $48.9 million for non-continuous care, 

resulting in a total loss of $16.2 million. Kolodesh argues 

that Pugman and Ganetsky were not competent to testify as to 

the percentage of fraudulent claims and that the government 

provided no foundation for their testimonies. He says that,

based on expert testimony he advanced at the sentencing 

hearing, statistical sampling was needed to establish an 

accurate estimate of loss in this case. 

The District Court did not clearly err in concluding 

that the government proved a $16.2 million loss. Pugman and 

Ganetsky each testified extensively at trial regarding their 

intimate involvement in the management of Home Care 

Hospice and, together with Kolodesh, their direction of the 

company’s fraudulent activities. It is difficult to imagine who 

would have been more competent to testify based on personal 

knowledge as to the loss involved in this case. Furthermore, 

“[t]here is no rule that a district court must rely upon 

statistical analysis in a situation such as this to determine the 

amount of loss pursuant to section 2B1.1.” United States v. 

Jones, 641 F.3d 706, 712 (6th Cir. 2011) (making that 

statement as a general proposition in a health care fraud case, 

but reversing because the district court relied solely on a 

flawed statistical analysis). And as the application notes to 

the Sentencing Guidelines indicate, “[t]he court need only 

make a reasonable estimate of the loss.” U.S.S.G. § 2B1.1 

app. n.3(C). We find no error in the District Court’s 

application of the loss enhancement. 

Next, Kolodesh argues that the District Court erred in 

applying a four-level enhancement based on his role as an 

organizer or leader of the fraudulent activity. See U.S.S.G. 

§ 3B1.1(a). He points to evidence adduced at trial indicating 
28

that he had no control over the fraud and instead was, at most, 

“a passive, silent partner” in Home Care Hospice. (Opening 

Br. at 56.) Although he acknowledges the existence of 

damning testimony by Pugman and Ganetsky, he argues that 

they were “simply not credible.” (Opening Br. at 57.) We 

decline Kolodesh’s invitation to reweigh the evidence or 

reassess the witnesses’ credibility. Pugman and Ganetsky 

repeatedly testified at trial that Kolodesh was intimately 

involved in directing the fraudulent scheme. Although the 

jury could have chosen to reject Pugman’s and Ganetsky’s 

testimony and believe Kolodesh’s version of events, it did 

not. The District Court’s finding that Kolodesh was an 

organizer or leader of the fraudulent activity is in line with the 

jury’s verdict, and Kolodesh has pointed to nothing in the 

record that would make the District Court’s finding clearly

erroneous. See United States v. Igbonwa, 120 F.3d 437, 440-

41 (3d Cir. 1997) (stating that under the clearly erroneous 

standard, the reviewing court does not “conduct a de novo

review of the evidence” but considers “whether there is 

enough evidence in the record to support the factual findings 

of the district court,” or, in the context of credibility 

determinations, whether “the district court’s decision is based 

on testimony that is coherent and plausible, not internally 

inconsistent and not contradicted by external evidence”).

Kolodesh’s final procedural challenge relates to the 

District Court’s imposition of a two-level sentencing 

enhancement for obstruction of justice. See U.S.S.G. 

§ 3C1.1. During trial, Alexy Drobot – a witness for the 

government who, as noted earlier, had contracted with Home 

Care Hospice to service its copy machine – testified that 

Kolodesh came to his office shortly before Drobot was 
29

scheduled to testify.

20

 Drobot was not there, but Kolodesh 

had Drobot’s secretary call and ask him to meet Kolodesh at 

Community Home Health. When Drobot refused, Kolodesh 

proposed a meeting at Starbucks. Drobot agreed and they met 

over coffee for about fifteen minutes. The only thing they 

discussed was Drobot’s upcoming testimony. Kolodesh 

mentioned that Drobot would probably get called as a witness 

the following week, and Kolodesh said, “don’t bury me.”

(App. at 2977.) Drobot responded that he would not perjure 

himself but would “tell the truth and be done with this.” 

(App. at 2978.) Drobot acknowledged on cross-examination 

that Kolodesh did not threaten him or ask him to lie or to 

change his testimony. 

Again, Kolodesh is simply rearguing the weight of the 

evidence, without pointing to anything that shows the District 

Court clearly erred in finding that he willfully attempted to 

obstruct or impede the administration of justice. We 

conclude, therefore, that the District Court did not commit 

procedural error in applying the challenged enhancements.

 

20 Drobot testified at trial about the agreement he had 

with Kolodesh and Pugman to provide them with fake 

invoices in return for a portion of the funds used to pay those 

invoices. 
30

2. Substantive Reasonableness21

Kolodesh challenges the substantive reasonableness of 

his sentence by arguing that he “did not orchestrate the fraud 

committed by [Home Care Hospice]” and that he “suffers 

from several physical and emotional conditions” that will 

prevent him from committing further crimes and make him an 

inappropriate candidate for a long term of incarceration. 

(Opening Br. at 62, 63.) He also says that the imposition of a 

large sentence and large restitution amount renders the 

sentence doubly harsh. We have already disposed of 

Kolodesh’s challenge to his role in the fraudulent scheme. 

See supra p. 24. As to Kolodesh’s physical condition, the 

District Court concluded that the Bureau of Prisons was “fully 

equipped and ... well positioned to provide appropriate 

medical attention to Mr. Kolodesh’s ailments.” (Supp. App. 

at 12.) Kolodesh recites his ailments but does nothing to 

challenge the Court’s conclusion or to show why his ailments 

are so incapacitating that he could not commit any further 

offenses. Finally, the combination of a lengthy imprisonment 

term with a large restitution order does not render a sentence 

unreasonable. Cf., e.g., United States v. Lewis, 557 F.3d 601, 

613-15 (8th Cir. 2009) (upholding the substantive 

reasonableness of a sentence of 204 months’ imprisonment in 

a case involving a restitution order of $39 million, although 

 

21 We review the substantive reasonableness of a 

sentence for abuse of discretion. Wise, 515 F.3d at 218. “[I]f 

the district court’s sentence is procedurally sound, we will 

affirm it unless no reasonable sentencing court would have 

imposed the same sentence on that particular defendant for 

the reasons the district court provided.” United States v. 

Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
31

the defendant there did not argue that the length of 

imprisonment and size of restitution combined to render the 

sentence unreasonable). Rather, we must “take into account 

the totality of the circumstances” as we consider the 

reasonableness of the sentence under the facts of each case. 

Gall v. United States, 552 U.S. 38, 51 (2007). 

Under a common understanding of the term, restitution 

is just what its name denotes: a restoring of victims to their 

state before the crime, as nearly as possible.22 Viewed that 

way, it is akin to compensatory damages in a civil suit rather 

than punitive damages. The Supreme Court, however, has 

stated that there is a punitive aspect to restitution orders in a 

criminal case, see Paroline v. United States, 134 S. Ct. 1710, 

1726 (2014) (“The primary goal of restitution is remedial or 

compensatory, but it also serves punitive purposes.” (citation 

omitted)), and we are bound to follow that. Yet even though 

restitution has been deemed to serve “punitive purposes,” its 

“primary goal” is still “remedial or compensatory,” id., and 

we see no reason why imposing restitution in an amount 

 

22 See Merriam-Webster’s Collegiate Dictionary 996 

(10th ed. 2002) (defining “restitution” as “1: an act of 

restoring or a condition of being restored: as a: a restoration 

of something to its rightful owner b: a making good of or 

giving an equivalent for some injury 2: a legal action serving 

to cause restoration of a previous state,” defining “restitute” 

as “1: to restore to a former state or position 2: GIVE BACK; 

esp: REFUND,” and defining “restore” as “1: GIVE BACK, 

RETURN 2: to put or bring back into existence or use 3: to 

bring back to or put back into a former or original state: 

RENEW 4: to put again in possession of something”

(emphases omitted)).
32

equal to the loss actually caused by Kolodesh and his coconspirators would, when coupled with a lengthy term of 

imprisonment that is otherwise reasonable, render the 

sentence substantively unreasonable. Moreover, the District 

Court here granted a downward departure,

23 imposing a 

sentence of 176 months’ imprisonment in the face of a 

guidelines range of 188 to 235 months. The justifications 

given for the sentence are reasonable. 

3. Restitution24

Kolodesh argues that the government did not 

adequately prove the amount of loss and that, in any event, 

the District Court erred by holding him jointly and severally 

liable for the full amount of loss rather than for the portion he 

caused. Kolodesh’s first argument is answered by our 

already-stated conclusion regarding the District Court’s 

factual findings on the loss amount. See supra pp. 22-23. His

second argument is foreclosed by the very language of the 

statute authorizing restitution, which explicitly provides for 

joint and several liability in the full amount:

If the court finds that more than 1 defendant has 

contributed to the loss of a victim, the court 

may make each defendant liable for payment of 

 

23 The Court granted the downward departure based on 

its conclusion that the lower sentence “will satisfy the factors 

under 3553.” (Supp. App. at 12.)

24

“We review the legality of a restitution order de 

novo and review specific awards for abuse of discretion.” 

United States v. Turner, 718 F.3d 226, 235 (3d Cir. 2013).
33

the full amount of restitution or may apportion 

liability among the defendants to reflect the 

level of contribution to the victim’s loss and 

economic circumstances of each defendant.

18 U.S.C. § 3664(h). 

Kolodesh relies on the Supreme Court’s recent 

decision in Paroline, but that case cannot serve him in these 

circumstances. Paroline interpreted 18 U.S.C. § 2259, a 

mandatory restitution statute specific to Chapter 110 of the 

United States criminal code, which covers sexual exploitation 

and other abuse of children. 134 S. Ct. at 1716. The opinion 

was specifically concerned with the application of § 2259 to 

the crime of possessing child pornography. Id. The Supreme 

Court vacated an en banc decision of the United States Court 

of Appeals for the Fifth Circuit that had “held that § 2259 did 

not limit restitution to losses proximately caused by the 

defendant, and each defendant who possessed the victim’s 

images should be made liable for the victim’s entire losses 

from the trade in her images, even though other offenders 

played a role in causing those losses.” Id. at 1718. While the 

Supreme Court held that “a court applying § 2259 should 

order restitution in an amount that comports with the 

defendant’s relative role in the causal process that underlies 

the victim’s general losses,” it explicitly limited that holding 

to the “special context” at issue in the case. Id. at 1727. 

Regardless of whether the words “special context” refer only 

to possession-of-child-pornography offenses or, more 

broadly, to any offense which might involve an “atypical 

causal process” underlying the victim’s losses, id. at 1722, no 

such special context exists here. This case involves 

straightforward consideration of moneys obtained by fraud. 
34

Paroline does not alter the long-standing availability of jointand-several liability in circumstances such as this.25

 The 

District Court’s restitution order is thoroughly sound.

III. Conclusion

For the foregoing reasons, we will affirm Kolodesh’s 

conviction and sentence.

 

25 Section 2259, the statute at issue in Paroline,

incorporates the enforcement procedures of § 3664. See 18 

U.S.C. § 2259(b)(2) (“An order of restitution under this 

section shall be issued and enforced in accordance with 

section 3664 in the same manner as an order under section 

3663A[, which governs mandatory restitution to victims of 

certain crimes].”). As noted above, § 3664 grants the district 

court discretion to impose joint and several liability or to 

apportion liability. Id. § 3664(h). Again, nothing in Paroline

suggests that the Court was foreclosing the statutorily 

authorized imposition of joint and several liability in the 

typical case.