United States v. 4219 University Drive, Fairfax , 714 F.3d 782 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
and
4219 UNIVERSITY DRIVE, FAIRFAX,
VIRGINIA; $28,534.22 IN FUNDS
SEIZED FROM PNC BANK ACCOUNT
NO. ENDING IN 4269,
 No. 12-1321
Defendants,
v.
DUYGU KIVANC; TURAN KIVANC,
Parties-in-Interest-Appellants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Liam O’Grady, District Judge.
(1:11-cv-00641-LO-TCB)
Argued: January 30, 2013
Decided: April 26, 2013
Before WILKINSON, KEENAN, and WYNN,
Circuit Judges.
Affirmed by published opinion. Judge Wynn wrote the opin-
ion, in which Judge Wilkinson and Judge Keenan concurred.
2 UNITED STATES v. KIVANC
COUNSEL
ARGUED: Jeffrey Steven Jacobovitz, ARNALL GOLDEN
GREGORY, Washington, D.C., for Appellants. Karen Led-
better Taylor, OFFICE OF THE UNITED STATES ATTOR-
NEY, Alexandria, Virginia, for Appellee. ON BRIEF: Neil
H. MacBride, United States Attorney, Brian D. Harrison, Spe-
cial Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
OPINION
WYNN, Circuit Judge:
In this case, a federal jury found that the defendant proper-
ties — a residence and proceeds seized from a bank account
— were subject to civil forfeiture. Specifically, the jury found
that each property derived from the proceeds of a health care
fraud and money laundering scheme committed by Dr. Mert
Kivanc—the son of Turan and Duygu Kivanc ("Claimants").
Claimants, who own the properties, unsuccessfully contested
the properties’ forfeiture before the district court.
On appeal, Claimants contend that the district court erred
by denying their motions to dismiss, to permit remote testi-
mony, and for judgment as a matter of law. Claimants further
argue that the district court mistakenly prohibited the admis-
sion of certain documents and refused to give their proposed
jury instructions. For the reasons below, we affirm the district
court’s various rulings.
I.
The Federal Bureau of Investigation ("FBI") first began
investigating Dr. Kivanc, a physician who operated a medical
UNITED STATES v. KIVANC 3
practice in Falls Church, Virginia, in April 2005, after receiv-
ing a report from a former patient that Dr. Kivanc was over-
prescribing controlled substances. This former patient alleged
that Dr. Kivanc prescribed her "whatever drugs she wanted"
without performing a physical exam or medical tests. J.A.
1978. In October 2010, Dr. Kivanc was indicted for distribut-
ing and conspiring to distribute controlled substances. The
government has not, however, arrested Dr. Kivanc because in
November 2007, he fled the United States for Turkey.
On October 18, 2006, in the course of the FBI’s investiga-
tion of Dr. Kivanc’s alleged illegal distribution of prescription
drugs, FBI Agent Aaron Weeter interviewed two of Dr.
Kivanc’s former employees and learned of a health care fraud
scheme involving Remicade, a relatively expensive antibody
drug that is infused into the vein to control certain autoim-
mune diseases such as rheumatoid arthritis.
In 2007, the FBI began investigating the allegations of Dr.
Kivanc’s Remicade health care fraud scheme. FBI agents
interviewed Dr. Kivanc’s former employees and patients, ana-
lyzed his billing, supply, and bank records, and discovered
evidence indicating that Dr. Kivanc had engaged in a scheme
to defraud his patients’ health care benefit programs through
several methods of fraudulent Remicade billing. Khoa
Nguyen-Dr. Kivanc’s former medical assistant who pled
guilty to conspiring to distribute controlled substances-
testified at trial that he and Dr. Kivanc employed four main
methods of fraudulent Remicade billing: (1) billing for more
Remicade than the patients actually received; (2) billing for
Remicade infusions when the patients received a less expen-
sive steroid medication; (3) billing for Remicade infusions
when the patients did not receive any infusions; and (4) bill-
ing for Remicade paid for by other patients’ health care bene-
fit programs. In April 2011, Dr. Kivanc was indicted for
health care fraud and conspiracy to commit health care fraud
based on the Remicade scheme.
4 UNITED STATES v. KIVANC
Colleen Seres, an FBI forensic accountant who reviewed
documents related to Dr. Kivanc’s investigation, testified at
trial that during the period of November 1, 2005, through
October 31, 2007, 60% of Dr. Kivanc’s Remicade billing was
for Remicade supply that he did not possess. Seres calculated
that Dr. Kivanc fraudulently collected at least $948,590 in
Remicade billings from seven health care benefit programs.
Seres traced $701,507 in fraudulent Remicade payments to
Dr. Kivanc’s medical practice business account ending in
9232 at Wachovia Bank ("Wachovia Business Account").
Claimants originally purchased the residential property at
4219 University Drive, Fairfax, Virginia ("Defendant Real
Property") in 1993. In September 2005, Claimants transferred
Defendant Real Property to Dr. Kivanc for $625,000. The
same day, Dr. Kivanc obtained a $288,000 mortgage on the
property. In February and March 2007, Dr. Kivanc wrote a
series of five checks totaling approximately $196,000 from
his Wachovia Business Account to pay the mortgage loan.
Seres testified that she traced these five checks to Remicade
proceeds. Shortly after Dr. Kivanc made these payments, the
mortgage was paid in full as evidenced by a certificate of sat-
isfaction dated April 16, 2007.
In February 2007, Dr. Kivanc hired a construction contrac-
tor, Michael Daughtry, to completely renovate Defendant
Real Property. Dr. Kivanc approved Daughtry’s renovation
design, and Daughtry submitted the bills for the renovation
project to Dr. Kivanc.
On May 30, 2007, while the renovation project was on-
going, Dr. Kivanc executed a deed transferring Defendant
Real Property back to Claimants for $625,000. Daughtry testi-
fied that he did not know that Dr. Kivanc sold Defendant Real
Property to Claimants in May 2007, and he did not even meet
Claimants until the fall of 2007. Dr. Kivanc continued to pay
Daughtry for the renovation project in person until late Octo-
ber 2007, just before Dr. Kivanc fled to Turkey. From that
UNITED STATES v. KIVANC 5
point forward, Dr. Kivanc’s brother paid Daughtry with
checks drawn on Dr. Kivanc’s business account. Claimants
moved into Defendant Real Property sometime in 2008.
Seres testified that Dr. Kivanc paid a total of approximately
$469,000 for the renovation project via a series of sixty-eight
checks written from his Wachovia Business Account. Dr.
Kivanc paid approximately $430,000 of that amount after the
deed transferring the property to Claimants was recorded on
June 5, 2007.
Between November 2006 and May 2007, Dr. Kivanc also
wrote four checks totaling $446,780 to his father, Turan, from
his Wachovia Business Account. Seres traced these four
checks to Remicade payments. Further, Seres traced one of
these checks—dated January 7, 2007, and in the amount of
$123,180—from its date of deposit into Claimants’ bank
account through July 2011, when the United States Marshals
Service seized the remaining $28,534.22 from Claimants’
bank account ending in 4269 at PNC Bank ("Defendant Bank
Account").
On June 15, 2011, the government filed a verified com-
plaint for forfeiture in rem against Defendant Real Property
alleging that it was subject to forfeiture pursuant to 18 U.S.C.
§ 981 (a)(1)(A) and (C) as property derived from health care
fraud proceeds and involved in money laundering. On August
4, 2011, the government filed an amended complaint adding
Defendant Bank Account. Claimants filed a verified claim of
interest for both properties.
Claimants then filed a motion to dismiss, arguing that the
statute of limitations barred the action. The district court
denied that motion.
Claimants also filed motions to permit Turan and Dr.
Kivanc to testify at trial remotely from Turkey. In support of
Turan’s motion, Claimants submitted two letters from Turan’s
6 UNITED STATES v. KIVANC
doctor in Turkey stating that his health prevented him from
traveling to the United States, and the government submitted
an opposing letter from an American doctor. The district court
denied both motions.1
The government filed a motion in limine to admit Dr.
Kivanc’s statements against his interest into evidence at trial.
Claimants opposed the motion and argued that if the court
admitted Dr. Kivanc’s statements, Federal Rule of Evidence
106 should permit them to introduce an affidavit filed by Dr.
Kivanc and a letter Dr. Kivanc wrote to his attorney. The dis-
trict court conditionally granted the government’s motion but
denied Claimants’ request to introduce Dr. Kivanc’s affidavit
and letter.
The case was tried before a jury in February 2012 in the
United States District Court for the Eastern District of Vir-
ginia. At the close of the government’s evidence and all of the
evidence, Claimants moved for judgment as a matter of law
under Rule 50, which the district court denied. Additionally,
the district court rejected some of Claimants’ proposed jury
instructions, including their theory of the case instruction and
proportionality instruction as applied to money laundering.
The jury returned a verdict in the government’s favor, find-
ing that the government proved by a preponderance of the evi-
dence that Dr. Kivanc conspired to commit health care fraud
and committed money laundering, that the defendant proper-
ties derived from health care fraud proceeds, and that the
defendant properties were involved in concealment and trans-
actional money laundering. The district court entered judg-
ment accordingly, and Claimants appealed.
1
The government filed a motion to subpoena Dr. Kivanc; that motion
was granted.
UNITED STATES v. KIVANC 7
II.
On appeal, Claimants contend the district court erred by:
(1) denying their motion to dismiss; (2) denying their motions
to permit Turan and Dr. Kivanc to testify remotely; (3) admit-
ting Dr. Kivanc’s hearsay statements yet prohibiting the
admission of Dr. Kivanc’s affidavit and letter to his attorney;
(4) failing to give their requested jury instructions; and (5)
denying their Rule 50 motion for judgment as a matter of law.
A.
Claimants first contend that the district court erred by deny-
ing their motion to dismiss because the statute of limitations
barred the action.
In an appeal from an in rem civil forfeiture proceeding, we
review a district court’s factual findings for clear error and its
conclusions of law de novo. United States v. Undetermined
Amount of U.S. Currency, 376 F.3d 260, 264 (4th Cir. 2004).
The district court’s determination of when the government
discovered an alleged underlying offense and the related trig-
gering of the statute of limitations under 19 U.S.C. § 1621 is
a factual determination reviewed for clear error. United States
v. $515,060.42 in U.S. Currency, 152 F.3d 491, 502 (6th Cir.
1998).
The statute of limitations is an affirmative defense that may
be raised in a Rule 12(b)(6) motion to dismiss for failure to
state a claim. Dean v. Pilgrim’s Pride Corp., 395 F.3d 471,
474 (4th Cir. 2005). Under Section 1621, the government has
"five years after the time when the alleged offense was dis-
covered" to initiate forfeiture proceedings. 19 U.S.C. § 1621;
United States v. Minor, 228 F.3d 352, 360 (4th Cir. 2000).
Courts apply a known or should-have-known standard to Sec-
tion 1621, meaning that "an offense is discovered when the
[g]overnment discovers or possesses the means to discover
the alleged wrong, whichever occurs first." $515,060.42, 152
8 UNITED STATES v. KIVANC
F.3d at 502; see also United States v. James Daniel Good
Prop. Titled in Name of James Daniel Good, 971 F.2d 1376,
1381 (9th Cir. 1992).
Claimants argue that the government first discovered Dr.
Kivanc’s general health care fraud in April 2005; thus, the
limitations period expired before the complaint was filed in
June 2011. The government contends that although it discov-
ered Dr. Kivanc’s overprescribing of controlled substances in
April 2005, the Remicade health care fraud is a separate
offense that the government discovered only in October 2006.
The district court agreed with the government and denied
Claimants’ motion to dismiss.
Claimants characterize Dr. Kivanc’s health care fraud as a
single, continuing offense and cite $515,060.42 in support of
their argument. In $515,060.42, the Sixth Circuit concluded
that a forfeiture action was time-barred because even though
the government seized currency from relatively recent bingo
operations, it had discovered the illegal gambling operation
more than five years before filing the forfeiture action. 152
F.3d at 502-03. The court emphasized that the statute of limi-
tations runs "from the date of ‘discovery’ of an offense" and
noted that the government "cannot disregard its discovery of
earlier occurring offenses in preference for later offenses
which would produce a more favorable timeline." Id. (empha-
sis in original).
But $515,060.42 involved a single, continuing offense—the
illegal operation of a gambling business—whereas here, Dr.
Kivanc committed multiple, separate offenses. See United
States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504,
508-09 (7th Cir. 2010) (distinguishing $515,060.42 because
each incident of smuggling illegal cigars into the country con-
stitutes a new, separate offense for Section 1621 purposes).
When there is a continuing course of conduct with multiple,
distinct underlying crimes that independently could support
forfeiture of the same property, the limitations period starts
UNITED STATES v. KIVANC 9
afresh with each new offense. Id. at 508. Thus, a court may
adjudicate a forfeiture action as long as one underlying
offense is not time-barred, even if the statute of limitations
has run on the remaining offenses. Id.The record in this case shows that Dr. Kivanc committed
at least two separate offenses. See id. at 508-09.
Regarding the first offense, the government began investi-
gating Dr. Kivanc in April 2005 after the Drug Enforcement
Agency interviewed Dr. Kivanc’s former patient Kimberly
Maxwell. Maxwell alleged that Dr. Kivanc overprescribed
controlled substances to her, including several pain medica-
tions such as hydrocodone, oxycodone, and methadose, with-
out a medical exam and billed her insurance for services that
she never received. Maxwell did not allege that Dr. Kivanc
prescribed, administered, or billed her insurance for Remi-
cade.
Regarding the second offense, the FBI became aware of the
Remicade fraud on October 18, 2006, after Agent Weeter
interviewed two of Dr. Kivanc’s former employees who spe-
cifically mentioned the Remicade infusion scheme. Prior to
that date, the FBI was investigating Dr. Kivanc’s "illegal dis-
tribution of prescription drugs," but was not aware of "any-
thing related to Remicade." J.A. 137.
We conclude that the Remicade health care fraud was a
new "alleged offense" for purposes of Section 1621. See id.
at 508. The fact that the government separately indicted Dr.
Kivanc for each crime supports our conclusion: The govern-
ment charged Dr. Kivanc with nineteen counts of distributing
and conspiring to distribute controlled substances under 21
U.S.C. §§ 841(a)(1) and 846 in October 2010 and later, in
April 2011, indicted Dr. Kivanc for the distinct crimes of
twenty-three counts of health care fraud and conspiring to
commit health care fraud under 18 U.S.C. §§ 1347 and 1349
based on the Remicade scheme. The government based its
10 UNITED STATES v. KIVANC
civil forfeiture action not on Dr. Kivanc’s overprescribing of
controlled substances, but specifically on the Remicade health
care fraud. Because the government filed its complaint in this
case within five years of its discovery of the Remicade
scheme in October 2006, the district court correctly denied
Claimants’ motion to dismiss based on the statute of limita-
tions.
B.
Claimants next argue that the district court erred by deny-
ing their motions to permit Turan and Dr. Kivanc to testify
remotely from Turkey.
This Court reviews a district court’s rulings regarding the
presentation of evidence for abuse of discretion. United States
v. Ford, 88 F.3d 1350, 1362 (4th Cir. 1996). The same stan-
dard applies to rulings regarding the use of remote testimony.
Palmer v. Valdez, 560 F.3d 965, 968-69 (9th Cir. 2009);
Thornton v. Snyder, 428 F.3d 690, 697 (7th Cir. 2005). Fed-
eral Rule of Civil Procedure 43 governs the taking of testi-
mony at trial and states that "[f]or good cause in compelling
circumstances and with appropriate safeguards, the court may
permit testimony in open court by contemporaneous transmis-
sion from a different location." Fed. R. Civ. P. 43(a).
Claimants argue that they showed good cause and compel-
ling circumstances for Turan to testify remotely because of
his poor health. Specifically, Claimants cite two letters from
Turan’s Turkish physician stating that Turan should not travel
long distances due to his medical conditions, which include
kidney stones, hypertension, and fainting. But the government
provided an opposing letter from an American doctor who
concluded that Turan’s medical conditions did not prevent
long-distance travel.
The magistrate judge reviewed the competing letters and
heard arguments regarding the importance of Turan’s testi-
UNITED STATES v. KIVANC 11
mony. The magistrate judge then denied Claimants’ motion to
permit Turan’s remote testimony, noting that "I don’t see any-
thing in this [case] that would lead me to believe that he can-
not travel." J.A. 724-25. The district court affirmed that
decision, concluding that the magistrate judge did not clearly
err by weighing the benefit of live testimony against the duel-
ing expert reports regarding Turan’s health and any inconve-
nience of international travel. Given these facts, we cannot
conclude that the district court abused its discretion by deny-
ing Claimants’ motion to permit Turan to testify remotely.2
Claimants also contend that they showed good cause and
compelling circumstances for Dr. Kivanc to testify remotely
from Turkey. At the hearing on Claimants’ motion, their
attorney argued that even though the government subpoenaed
Dr. Kivanc and indicted him on criminal charges, Dr. Kivanc
was "unwilling to come back" to the United States but would
testify remotely. J.A. 966. These facts do not amount to good
cause or compelling circumstances to testify remotely. As the
district court noted, allowing Dr. Kivanc to testify remotely
under these circumstances would "make a mockery of our
system of justice[.]" J.A. 966. Accordingly, we cannot con-
clude that the district court abused its discretion by denying
Claimants’ motion.
C.
Claimants next argue that the district court erred by admit-
2
Claimants also briefly assert that they showed good cause for Turan to
testify remotely based on the cost of travel from Turkey to the United
States. Yet Claimants did not raise this basis before the district court. It
is therefore not preserved for our review. See Holland v. Big River Miner-
als Corp., 181 F.3d 597, 605 (4th Cir. 1999). Even if it were preserved,
there is no evidence that the cost of international travel would be a sub-
stantial burden on Turan. Compare Lopez v. NTI, LLC, 748 F. Supp. 2d
471, 480 (D. Md. 2010) (holding that it would impose a substantial incon-
venience and cost to require individuals who make no more than $7,000
a year to travel from Honduras to the United States).
12 UNITED STATES v. KIVANC
ting hearsay statements against Dr. Kivanc’s interest and by
prohibiting the admission of two documents under Rule 106.
We will not overturn such evidentiary rulings absent an abuse
of discretion. United States v. Hedgepeth, 418 F.3d 411, 419
(4th Cir. 2005). And if an evidentiary ruling is found to be
erroneous, we review the error for harmlessness. Id.; Fed. R.
Civ. P. 61.
1.
We first consider whether the district court abused its dis-
cretion by admitting hearsay statements against Dr. Kivanc’s
interest.
Federal Rule of Evidence 802 generally prohibits the
admission of out-of-court statements offered to prove the truth
of the matters asserted. See also Fed. R. Evid. 801(c) (defin-
ing hearsay). Federal Rule of Evidence 804 lists several
exceptions to Rule 802, including statements against interest,
which are admissible if the declarant is unavailable as a wit-
ness. Fed. R. Evid. 804(b). A statement against interest is a
statement that:
(A) a reasonable person in the declarant’s position
would have made only if the person believed it to be
true because, when made, it . . . had so great a ten-
dency to . . . expose the declarant to civil or criminal
liability; and
(B) is supported by corroborating circumstances that
clearly indicate its trustworthiness, if it is offered in
a criminal case as one that tends to expose the
declarant to criminal liability.
Fed. R. Evid. 804(b)(3).
Claimants recognize that Rule 804(b)(3)(B) requires cor-
roborating circumstances only for statements "offered in a
UNITED STATES v. KIVANC 13
criminal case[.]" Yet, Claimants still maintain that though this
is a civil case, Dr. Kivanc’s statements against interest must
be corroborated and that the government failed to provide evi-
dence of the trustworthiness of Dr. Kivanc’s statements. As
the Advisory Committee’s Notes to Rule 804 explain, the rule
does not address "the use of the corroborating circumstances
for declarations against penal interest offered in civil cases."
Fed. R. Evid. 804 advisory committee’s notes, 2010 amend-
ments. Nevertheless, at least one circuit court has applied
Rule 804(b)(3)’s corroborating circumstances requirement in
a civil case. Am. Auto. Accessories, Inc. v. Fishman, 175 F.3d
534, 541 (7th Cir. 1999). We need not decide this issue, how-
ever, because even if Rule 804(b)(3)(B)’s corroborating cir-
cumstances requirement were somehow to apply, the district
court did not abuse its discretion by admitting the challenged
statements.
We have identified several factors relevant in assessing the
corroboration of a statement admitted under Rule 804(b)(3):
(1) whether the declarant had at the time of making
the statement pled guilty or was still exposed to
prosecution for making the statement, (2) the declar-
ant’s motive in making the statement and whether
there was a reason for the declarant to lie, (3)
whether the declarant repeated the statement and did
so consistently, (4) the party or parties to whom the
statement was made, (5) the relationship of the
declarant with the accused, and (6) the nature and
strength of independent evidence relevant to the con-
duct in question.
United States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995)
(citations omitted).
Claimants challenge the following statements: (1) testi-
mony by a former employee who overheard Dr. Kivanc refer
to Remicade as "the money maker" during conversations with
14 UNITED STATES v. KIVANC
Nguyen, J.A. 1207; (2) testimony by a former employee that
Dr. Kivanc told her "there was an investigation going on" and
directed her to lie to the FBI, J.A. 1220-21; (3) Nguyen’s tes-
timony about how he and Dr. Kivanc "doctored" documents
to obtain Nguyen’s medical assistant license, J.A. 1238; (4)
Nguyen’s statement that Dr. Kivanc told him Turan "was
going to gather all of his [financial] records" following the
government’s request for Dr. Kivanc’s business records, J.A.
1244; (5) Nguyen’s testimony that Dr. Kivanc told him to
"give the two [remaining] vials" of Remicade to a patient who
was supposed to receive five vials, J.A. 1261-62; (6)
Nguyen’s testimony that Dr. Kivanc told him "not to write
[patient notes] up like this anymore because . . . if this were
to get into the wrong hands . . . they would know we were
doing fraud," J.A. 1279; and (7) Nguyen’s testimony that Dr.
Kivanc said he was being persecuted and investigated, didn’t
know what he was going to do, and was "just going to try to
get the house." J.A. 1288.
We first note that certain of the challenged statements are
not hearsay. See Fed. R. Evid. 801(c); see also United States
v. Diaz, 670 F.3d 332, 346 (1st Cir. 2012) (stating that "[o]ut-
of-court statements providing directions from one individual
to another do not constitute hearsay" when not offered to
prove the truth of what was asserted). For the remaining state-
ments, the following circumstances corroborate their trust-
worthiness: (1) Dr. Kivanc appears to have made each
statement while at his medical office in the course of discuss-
ing work-related issues with his employees, and there was no
apparent reason for Dr. Kivanc to lie to his employees; (2)
several of the statements convey Dr. Kivanc’s then-existing
plans, cf. Fed. R. Evid. 803(3) (declarant’s then-existing state
of mind, such as motive, intent, or plan); and (3) Dr. Kivanc’s
statements expose him to criminal liability, see United States
v. Brainard, 690 F.2d 1117, 1125 (4th Cir. 1982) (concluding
that circumstances surrounding the declarant’s statements pro-
vided the required corroboration in part because they tended
to inculpate him).
UNITED STATES v. KIVANC 15
Accordingly, the district court did not abuse its discretion
by admitting Dr. Kivanc’s statements.
2.
We next consider whether the district court abused its dis-
cretion by denying Claimants’ request to admit two docu-
ments under Rule 106. Rule 106 of the Federal Rules of
Evidence states: "If a party introduces all or part of a writing
or recorded statement, an adverse party may require the intro-
duction, at that time, of any other part—or any other writing
or recorded statement—that in fairness ought to be considered
at the same time." The purpose of Rule 106 is to permit the
contemporaneous introduction of written or recorded state-
ments "that place in context other writings [or recorded state-
ments] admitted into evidence which, viewed alone, may be
misleading." United States v. Jamar, 561 F.2d 1103, 1108
(4th Cir. 1977).
Claimants argue that the district court erred by prohibiting
the admission of Dr. Kivanc’s pretrial affidavit and letter to
his attorney to "complete[ ] the record" and to mitigate "the
prejudice created by the admitted hearsay statements." Appel-
lant Br. at 33. Claimants’ attempt to invoke Rule 106, how-
ever, must fail.
Rule 106 applies only to writings and recorded statements,
not to conversations. Fed. R. Evid. 106, advisory committee
notes; United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir.
1996). Here, Claimants sought the documents’ introduction to
refute witness testimony and conversations without reference
to any specific document or recorded statement. And assum-
ing for the sake of argument that Rule 106 applied to conver-
sations and testimony, it would not apply here, when no
introduced conversation was partially introduced or needed
clarification. See Wilkerson, 84 F.3d at 696. Therefore, the
district court did not abuse its discretion by denying Claim-
ants’ request.
16 UNITED STATES v. KIVANC
D.
With their next argument on appeal, Claimants contend that
the district court erred by failing to give two of their proposed
jury instructions.
This Court reviews a district court’s jury instructions deci-
sion for an abuse of discretion. United States v. Moye, 454
F.3d 390, 398 (4th Cir. 2006) (en banc). A district court will
be reversed for declining to give a proposed jury instruction
only when the requested instruction "(1) was correct; (2) was
not substantially covered by the court’s charge to the jury; and
(3) dealt with some point in the trial so important, that failure
to give the requested instruction seriously impaired that
party’s ability to make its case." Noel v. Artson, 641 F.3d 580,
586 (4th Cir. 2011) (quotation marks omitted). In reviewing
the adequacy of jury instructions, we determine "whether the
instructions construed as a whole, and in light of the whole
record, adequately informed the jury of the controlling legal
principles without misleading or confusing the jury to the
prejudice of the objecting party." Id. (quotation marks omit-
ted).
Claimants contend that the district court erred by failing to
give the following proportionality instruction: "If the govern-
ment proves that only a portion of the funds transferred to the
claimants and used to purchase the property qualified as crim-
inally derived property, then the forfeiture order may only for-
feit that proportionate percentage of the property traced to the
tainted proceeds." J.A. 926. Claimants appear to argue that
even if Defendant Real Property is forfeitable, they are enti-
tled to the portion of the sale proceeds that came from a legiti-
mate source. The district court gave Claimants’ requested
instruction as applied to health care fraud, but denied it as
applied to money laundering, noting that the proportionality
rule doesn’t apply to the government’s theory of money laun-
dering as a basis for forfeiture.
UNITED STATES v. KIVANC 17
Under Section 981(a)(1)(A), any real or personal property
"involved in" a money laundering transaction in violation of
Section 1957 is subject to civil forfeiture. 18 U.S.C.
981(a)(1)(A). Consequently, when legitimate funds are com-
mingled with property involved in money laundering or pur-
chased with criminally derived proceeds, the entire property,
including the legitimate funds, is subject to forfeiture. See
United States v. McGauley, 279 F.3d 62, 76–77 (1st Cir.
2002) (stating that legitimate funds that are commingled with
illegitimate funds can be forfeited if the commingling was
done to conceal the illegitimate funds); United States v.
Baker, 227 F.3d 955, 970 n. 4 (7th Cir. 2000) (same); United
States v. One Single Family Residence Located at 15603 85th
Ave. N., Lake Park, Palm Beach Cnty., Fla., 933 F.2d 976,
981 (11th Cir. 1991) (stating that if one is a wrongdoer, "any
amount of the invested proceeds traceable to drug activities
forfeits the entire property"). Accordingly, Claimants’
requested proportionality instruction was an incorrect state-
ment of law as applied to money laundering, and the district
court did not abuse its discretion by declining to give it. See
Noel, 641 F.3d at 587.
Claimants also argue that the district court abused its dis-
cretion by instructing the jury on what Claimants characterize
as the government’s theory of the case,3 while refusing to give
Claimants’ proposed theory of the case instruction. Claimants
requested a three-paragraph-long theory of the case instruc-
tion, which included their proposed proportionality instruc-
tion, outlined their position on several factual issues in the
case, and concluded by stating that "the [g]overnment has not
met its burden on tracing the [Defendant Bank Account]
funds." J.A. 938.
3
When instructing the jury on the definition of proceeds, the district
court gave the following instruction which Claimants characterize as the
government’s theory of the case: "In this case[,] the [g]overnment alleges
that money that Dr. Kivanc fraudulently obtained from healthcare benefit
programs are the proceeds of healthcare fraud." J.A. 1742.
18 UNITED STATES v. KIVANC
Not only did Claimants’ lengthy proposed theory of the
case instruction contain an incorrect statement of law, it was
also likely to mislead or confuse the jury to the prejudice of
the government. Indeed, it would surely have been reversible
error, had the district court instructed the jury that "the
[g]overnment has not met its burden" in the case. J.A. 938.
Clearly, the district court did not abuse its discretion in
declining to give the proposed instruction.
E.
With their last argument on appeal, Claimants contend that
the district court erred by denying their Rule 50 motion for
judgment as a matter of law because the government failed to
offer sufficient evidence of Dr. Kivanc’s health care fraud and
money laundering.
We review a district court’s ruling on a motion for judg-
ment as a matter of law de novo. Bryant v. Aiken Reg’l Med.
Ctrs. Inc., 333 F.3d 536, 543 (4th Cir. 2003). We consider the
evidence in the light most favorable to the nonmoving party
but may not make credibility determinations or substitute our
judgment for that of the jury. Price v. City of Charlotte, N.C.,
93 F.3d 1241, 1249 (4th Cir. 1996).
Claimants first argue that the government failed to prove by
a preponderance of the evidence that Dr. Kivanc committed
or conspired to commit health care fraud. A person commits
health care fraud by
knowingly and willfully execut[ing], or attempt[ing]
to execute, a scheme or artifice (1) to defraud any
health care benefit program; or (2) to obtain, by
means of false or fraudulent pretenses, representa-
tions, or promises, any of the money or property
owned by, or under the custody or control of, any
health care benefit program . . . .
UNITED STATES v. KIVANC 19
18 U.S.C. § 1347.
Claimants contend that with the exception of co-conspirator
Nguyen’s testimony, the government failed to prove that Dr.
Kivanc knowingly and willfully committed or conspired to
commit health care fraud. But, as Claimants recognize,
Nguyen testified extensively about how he and Dr. Kivanc
implemented several methods to fraudulently bill Dr.
Kivanc’s patients’ health care benefit programs for Remicade
infusions. Further, Seres testified that 60% of Dr. Kivanc’s
Remicade billing was for Remicade supply that he did not
possess. Accordingly, the government presented sufficient
evidence to establish that Dr. Kivanc knowingly and willfully
committed and conspired to commit health care fraud.
Finally, Claimants argue that the government failed to
prove by a preponderance of the evidence that Dr. Kivanc
intended to conceal his unlawful activities through money
laundering. The elements of concealment money laundering
are:
(1) the defendant conducted or attempted to conduct
a financial transaction having at least a de minimis
effect on interstate commerce or involving the use of
a financial institution which is engaged in, or the
activities of which have at least a de minimis effect
on, interstate commerce; (2) the property that was
the subject of the transaction involved the proceeds
of specified unlawful activity; (3) the defendant
knew that the property involved represented the pro-
ceeds of some form of unlawful activity; and (4) the
defendant knew that the transaction was designed in
whole or part, to conceal or disguise the nature, the
location, the source, the ownership, or the control of
the proceeds of the unlawful activity.
United States v. Wilkinson, 137 F.3d 214, 221 (4th Cir. 1998)
(internal citation omitted); 18 U.S.C. § 1956(a)(1)(B)(i) and
20 UNITED STATES v. KIVANC
(c)(4) (defining financial transaction as one which "in any
way or degree affects interstate or foreign commerce"). To
establish the fourth element of concealment money launder-
ing, the government must prove a specific intent to conceal.
United States v. Villarini, 238 F.3d 530, 533 (4th Cir. 2001).
Claimants argue that the government failed to prove such
intent. We disagree.
Nguyen testified that Dr. Kivanc said he was "going to try
to get the house over to . . . his father’s name" and that Dr.
Kivanc said "F the [g]overnment, they’re not going to get S
from me." J.A. 1288. Seres explained that she traced
$701,507 in fraudulent Remicade payments to Dr. Kivanc’s
Wachovia Business Account, the account from which he paid
$665,588 in renovation and mortgage payments for Defendant
Real Property and wrote four checks totaling $446,780 to
Turan. Dr. Kivanc’s statements and transfer of Defendant
Real Property to Claimants and money to Turan are sufficient
evidence of his intent to conceal his unlawful activities to
withstand Claimants’ Rule 50 motion. See, e.g., United States
v. Shepard, 396 F.3d 1116, 1122 (10th Cir. 2005) (stating that
courts may infer intent to conceal when a defendant transfers
unlawful proceeds into the control of a family member);
United States v. Miles, 290 F.3d 1341, 1356 (11th Cir. 2002)
(same).
III.
In sum, we conclude that the district court did not err in its
various rulings and, accordingly, we affirm.
AFFIRMED