United States v. Allen G. Saoud , 595 F. App'x 182 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4288
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALLEN G. SAOUD,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:12-cr-00113-IMK-JSK-1)
Argued: October 31, 2014 Decided: December 19, 2014
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Wynn and Judge Diaz joined.
ARGUED: Paul J. Harris, Wheeling, West Virginia, for Appellant.
Andrew R. Cogar, OFFICE OF THE UNITED STATES ATTORNEY,
Clarksburg, West Virginia, for Appellee. ON BRIEF: Robert
McCoid, MCCAMIC, SACCO & MCCOID, P.L.L.C., Wheeling, West
Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Following a ten-day trial, a jury convicted Dr. Allen G.
Saoud of thirteen counts of health care fraud and nine related
offenses. The district court sentenced Dr. Saoud to 99 months’
incarceration, imposed a $2,630,000.00 fine, and ordered him to
forfeit $1,243,118.29.
Dr. Saoud argues on appeal that the district court erred by
denying his motion to either sever the charges against him or
continue the trial date, that insufficient evidence supported
many of his convictions, that jury misconduct denied him a fair
trial, that the district court erred at sentencing when
calculating the financial loss Dr. Saoud intended to cause, and
that the district court’s forfeiture determination was
erroneous. For the reasons that follow, we affirm.
I.
A.
Dr. Saoud founded AGS, Inc., a dermatology practice in West
Virginia, in 1994. Roughly ten years later, the United States
Department of Health and Human Services began investigating
whether Dr. Saoud had submitted false bills to Medicare or
Medicaid. In May 2005, while the investigation was ongoing, Dr.
Saoud established Central West Virginia Dermatology Associates
(“CWVD”), Inc., as a new dermatological practice at the same
2
location as AGS. In August 2005, Dr. Saoud, without admitting
liability, entered into a settlement agreement that excluded him
for ten years from participating in Medicare, Medicaid, and all
other federally sponsored health care programs. The agreement
specifically prohibited Dr. Saoud from, among other things,
billing federal health care programs “for items or services,
including administrative and management services, furnished,
ordered, or prescribed by Dr. Saoud during the exclusion.” J.A.
147; accord Appellant’s Br. at 5–6. The agreement also
effectively prohibited Dr. Saoud from owning more than five
percent of a medical practice that billed a federal health care
program, and from exercising operational or managerial control
over such a practice.
The government alleged below that Dr. Saoud committed four
categories of crimes in an attempt to circumvent the terms of
the agreement. First, he split his practice into two entities--
AGS and CWVD--and then took various steps to hide his ownership
and managerial interests in those entities. Most directly, Dr.
Saoud executed a series of sham transactions appearing to
transfer his interests in AGS and CWVD to various colleagues.
Second, Dr. Saoud caused CWVD to use without permission another
doctor’s name to bill insurance companies, including a Medicare
contractor, for dermatological pathology services. Third, after
filing for bankruptcy on behalf of AGS in May 2009, Dr. Saoud
3
testified falsely at a deposition and creditors meeting by
downplaying his involvement with both AGS and CWVD, and
emphasizing the distinction between the two entities. Fourth,
in October 2009, Dr. Saoud sent a letter to an Internal Revenue
Agent in which he stated falsely that he was not an officer of
AGS and had no relationship with CWVD after selling it in August
2005.
B.
In December 2012, a federal grand jury sitting in the
Northern District of West Virginia returned a twenty-three-count
indictment charging Dr. Saoud with, among other offenses, five
counts of health care fraud, one count of concealing a material
fact in a health care matter, one count of corruptly endeavoring
to obstruct and impede the due administration of the internal
revenue laws, twelve counts of making a false oath or account in
relation to a bankruptcy case, and one count of making a false
statement to a federal agent. In May 2013, the grand jury
returned a superseding indictment that charged no additional
offenses.
On June 4, 2013--eight days before trial was to commence--
the grand jury returned a second superseding indictment, which
added eight new health care fraud charges and a related charge
of aggravated identity theft. The nine new counts alleged that
Dr. Saoud caused CWVD to bill insurance companies in the name of
4
Dr. Frank Swisher, a practitioner of family medicine, for
dermatological pathology services that an outside lab actually
performed.
On June 6, 2013, Dr. Saoud moved to sever the nine new
counts or, in the alternative, for a continuance. The next day,
the district court heard oral argument. Dr. Saoud argued that
having only eight days to review the new charges would prejudice
his defense because he would have insufficient time to (1)
review the 200,000 pages of discovery for evidence related to
the new charges, or (2) determine whether Dr. Saoud wrongfully
caused CWVD to use Dr. Swisher’s identity. The government
responded that (1) it had identified for Dr. Saoud the relevant
insurance and lab invoices, and (2) it would rely on those
invoices and Dr. Swisher’s testimony to prove that CWVD
improperly used Dr. Swisher’s identity and that Dr. Saoud
orchestrated the scheme. The district court denied Dr. Saoud’s
motion to sever or continue after finding that “no undue
prejudice [would] result if [the] trial proceed[ed] as
scheduled.” J.A. 2442.
C.
Dr. Saoud’s trial began on June 12, 2013. On the seventh
day of trial, the government and Dr. Saoud delivered their
closing arguments and the district court submitted the case to
the jury. On the ninth day, the district court replaced one of
5
the jurors with an alternate. The following day, the court
replaced that alternate juror with a different alternate. The
district court then instructed the jury to “go back to the
beginning to make sure that the new juror ha[d] an opportunity
to be heard on every one of the[] issues that [the jury] may
have resolved.” J.A. 1983. The reconstituted jury retired to
deliberate at 12:35 p.m.
At 2:52 p.m., the district court announced that the jury
had reached a verdict. The jury convicted Dr. Saoud of thirteen
counts of health care fraud, one count of aggravated identity
theft, one count of concealing a material fact in a health care
matter, one count of corruptly endeavoring to obstruct and
impede the due administration of internal revenue laws, five
counts of making a false oath or account in relation to a
bankruptcy case, and one count of making a false statement to a
federal agent.
On March 25, 2014, the district court sentenced Dr. Saoud
to 99 months of incarceration, imposed a $2,630,000.00 fine, and
ordered him to forfeit $1,243,118.29. This appeal followed.
II.
Dr. Saoud mounts five challenges on appeal: to the denial
of his motion to sever or continue; to the sufficiency of the
evidence supporting the jury’s verdict; to the fairness of the
6
trial in light of alleged jury misconduct; to the loss amount
calculated at sentencing; and to the forfeiture determination.
We consider each argument in turn, incorporating additional
facts when necessary to our analysis.
A.
Dr. Saoud’s primary argument on appeal is that the district
court erred by denying his motion to sever or continue. See
Oral Arg. at 6:35–54 (“The thrust really of this appeal is the .
. . abuse of discretion by the trial court in refusing to grant
either a severance or a continuance after the second superseding
indictment was returned eight days before trial.”). To prevail
on this ground, Dr. Saoud must make two showings. First, he
must demonstrate that the district court abused its discretion
by denying his motion. See United States v. Copeland, 707 F.3d
522, 531 (4th Cir. 2013) (motion for continuance); United States
v. Min, 704 F.3d 314, 319 (4th Cir. 2013) (motion to sever).
Second, Dr. Saoud must show that the district court’s erroneous
decision prejudiced his defense. See United States v. Dinkins,
691 F.3d 358, 368 (4th Cir. 2012) (“We will not reverse a denial
of a motion to sever absent a showing of clear prejudice.”);
United States v. Williams, 445 F.3d 724, 739 (4th Cir. 2006)
(“[A] trial court’s denial of a continuance is . . . reviewed
for abuse of discretion; even if such an abuse is found, the
defendant must show that the error specifically prejudiced her
7
case in order to prevail.” (quoting United States v. Hedgepeth,
418 F.3d 411, 419 (4th Cir. 2005))(internal quotation marks
omitted)).
Dr. Saoud has not established reversible error because he
has not shown how the denial of his motion prejudiced his
defense. Dr. Saoud contends on appeal that he lacked adequate
time to “prepare a defense to the [new] counts,” “review the
over 200,000 pages of discovery documents in this case with
relation to the additional nine counts,” “interview the
witnesses contained in the additional nine counts,” or “hire an
expert related to issues surrounding the laboratory.”
Appellant’s Br. at 17. But he does not explain, as he must, how
his inability to do these things specifically prejudiced his
defense. Our precedent establishes that an appellant cannot
demonstrate prejudice with “a general allegation of ‘we were not
prepared,’” United States v. LaRouche, 896 F.2d 815, 825 (4th
Cir. 1990), or “post-hoc assertions by counsel that given more
time something might have turned up,” id. (quoting United States
v. Badwan, 624 F.2d 1228, 1231 (4th Cir. 1980)) (internal
quotation marks omitted). Even at oral argument, with the
benefit of hindsight, Dr. Saoud could identify no specific
source of prejudice.
Dr. Saoud has presented no reason to believe that the
outcome of his trial might have been different had the district
8
court granted his motion to sever or continue. We therefore
find no reversible error in the district court’s decision to
deny Dr. Saoud’s motion. 1
B.
Dr. Saoud next argues that insufficient evidence supported
his convictions for committing health care fraud, making a false
oath or account in relation to a bankruptcy case, corruptly
1
We reject Dr. Saoud’s contention that the district court
committed reversible error by holding trial fewer than thirty
days after the grand jury returned the second superseding
indictment. In making this argument, Dr. Saoud relies on 18
U.S.C. § 3161(c)(2), which provides that a “trial shall not
commence less than thirty days from the date on which the
defendant first appears through counsel or expressly waives
counsel and elects to proceed pro se” unless the defendant so
consents. Dr. Saoud’s reliance on this subsection is misplaced
because § 3161(c)(2) “clearly fixes the beginning point for the
trial preparation period as the first appearance through
counsel,” not “the date of the indictment” or “any superseding
indictment.” United States v. Rojas-Contreras, 474 U.S. 231,
234 (1985).
We are also unpersuaded by Dr. Saoud’s argument, made in
the portion of his brief devoted to the district court’s denial
of his motion to sever or continue, that the district court
“added to the miscarriage of justice” by “improperly
instruct[ing] the jury” on the aggravated identity theft count.
Appellant’s Br. at 17. Dr. Saoud maintains that the district
court “erroneously enlarged [his] burden to defend against the
identity theft allegations” by instructing the jury that it
could convict Dr. Saoud if it found that he used the identity of
another person “in relation to one of the crimes charged in
Counts One through Thirteen.” Id. at 17–18. He does not
suggest that this instruction was legally incorrect; rather, he
maintains that the inclusion of all thirteen health care fraud
counts was improper because the identify theft charge related to
only eight of those counts. This argument does not establish
that Dr. Saoud suffered prejudice from the district court’s
denial of his motion to sever or continue.
9
endeavoring to obstruct and impede the due administration of the
internal revenue laws, and making a false statement to a federal
agent. He bears a heavy burden: we will reverse on
insufficiency grounds “only ‘where the prosecution’s failure is
clear.’” United States v. Perry, 757 F.3d 166, 175 (4th Cir.
2014) (quoting United States v. Foster, 507 F.3d 233, 244–45
(4th Cir. 2007)). “[V]iewing the evidence and the reasonable
inferences to be drawn therefrom in the light most favorable to
the Government,” id., we must determine “whether the evidence
adduced at trial could support any rational determination of
guilty beyond a reasonable doubt,” id. (quoting United States v.
Burgos, 94 F.3d 849, 863 (4th Cir. 1996) (en banc)) (internal
quotation marks omitted).
For the following reasons, we find that sufficient evidence
supported each of Dr. Saoud’s challenged convictions. We begin
with a discussion of Dr. Saoud’s health care fraud convictions,
then turn to his convictions for making a false oath or account
in relation to a bankruptcy case, and finally consider his tax-
related convictions.
10
i.
Dr. Saoud argues that sufficient evidence supported none of
his thirteen convictions for health care fraud. 2 With respect to
counts one through five, he maintains that the government
presented no evidence that he “defrauded any health care benefit
program” or “violated the negotiated settlement agreement.”
Appellant’s Br. at 19–20. As for counts six through thirteen,
Dr. Saoud submits that there “was no evidence that [he] was
involved with [CWVD] at the time [it submitted invoices falsely
indicating that Dr. Swisher had provided pathology services], or
that Dr. Saoud provided these services.” Id. at 20. We
disagree.
The government presented evidence that Dr. Saoud
fraudulently attempted to conceal his interests in AGS and CWVD.
He performed these fraudulent acts because, as a person excluded
from the federal health care programs, he could not maintain a
“direct or indirect ownership or control interest of five
percent or more in an entity that participates in Medicare or a
State health care program,” 42 C.F.R. § 1003.102(b)(12)(i); see
2
A person commits health care fraud where, “in connection
with the delivery of or payment for health care benefits, items,
or services,” he “knowingly and willfully executes, or attempts
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, representations, or promises, any of the
money or property owned by, or under the custody or control of,
any health care benefit program.” 18 U.S.C. § 1347(a).
11
also 42 U.S.C. § 1320a-7(b)(8)(A)(i), or exercise “operational
or managerial control” over such an entity, 42 U.S.C. § 1320a-
5(b). A violation of either prohibition exposed Dr. Saoud to
financial penalties, see 42 C.F.R. § 1003.102(b)(12), and the
entity to exclusion from the health care programs, see 42 U.S.C.
§ 1320a-7(b)(8). Substantial evidence supports the jury’s
conclusion that Dr. Saoud committed health care fraud in his
attempts to hide his ownership of, and control over, AGS and
CWVD.
In count one, the grand jury charged Dr. Saoud with asking
his colleagues to sign a document that included “false and
misleading statements about . . . [Dr. Saoud’s] financial and
managerial interests in CWVD and AGS.” J.A. 94. At trial, the
government introduced evidence that Dr. Saoud asked three of his
colleagues in February 2008 to sign an agreement stating that he
“ha[d] no financial or managerial interest in [CWVD] and/or
AGS.” J.A. 832. A reasonable jury could have concluded that
this statement was untrue based on the government’s evidence
that Dr. Saoud maintained interests in both entities as of
February 2008. We briefly summarize some of that evidence now.
On August 26, 2005--roughly two weeks after Dr. Saoud
signed the settlement agreement and before CWVD had seen any
patients--Dr. Saoud purported to sell, via a one-page contract,
CWVD to Dr. Fred Scott, one of the doctors working at AGS, for
12
$1.6 million. Dr. Scott testified at trial that he never owned
CWVD, did not pay anything for the practice, and did not
remember signing the sales contract. This testimony supports
the conclusion that Dr. Saoud continued to own CWVD after
purportedly selling it to Dr. Scott. Similarly, in March 2006--
after most of AGS’s patients had transferred to CWVD--Dr. Saoud
executed a one-page contract that appeared to transfer AGS to
Georgia Daniel, one of AGS’s nurse practitioners, for $1
million. When Daniel told Dr. Saoud that she could not afford
to pay $1 million, he provided her with a document stating that
she would not be responsible for paying that sum because he
would recoup it from AGS’s future proceeds. The government also
introduced evidence that, after ostensibly selling the company
to Daniel, Dr. Saoud represented himself as AGS’s president and
continued to manage AGS’s day-to-day operations. Viewed in the
light most favorable to the government, this evidence supports
the conclusion that Dr. Saoud had a financial or managerial
interest in CWVD or AGS in February 2008.
Count two alleged that Dr. Saoud “executed a Purchase
Agreement to sell [CWVD] assets to [Daniel].” J.A. 94. The
government presented evidence that Dr. Saoud signed an agreement
in October 2008 purporting to transfer CWVD from Dr. Scott to
Daniel. Daniel testified that she did not recall signing this
agreement and did not own CWVD. A reasonable jury could have
13
concluded from this testimony that the October 2008 agreement
was a sham.
Count three charged Dr. Saoud with executing another
purchase agreement, this time in March 2009, “in which [Dr.
Timothy Peasak] agrees to buy [CWVD] from [Daniel].” J.A. 94.
The government produced this agreement at trial. It appeared to
contain both Dr. Peasak’s and Daniel’s signatures, but both
witnesses testified that they did not sign the agreement.
Daniel explained that she “would know if [she] signed a document
[stating] that [she] sold a business [she] didn’t own to [Dr.]
Peasak.” J.A. 1038. Dr. Peasak testified that he “one hundred
percent didn’t sign” the purchase agreement. J.A. 1188. This
testimony supports the jury’s conclusion that the March 2009
agreement was a sham.
Count four charged Dr. Saoud with signing an affidavit in
May 2009 “that makes various representations about [AGS]’s
operations and medical records.” J.A. 94. The government
presented this affidavit to the jury. Dr. Saoud states in the
affidavit that AGS was “only a medical billing service” and that
“all medical records are always under the control of the
patients, doctors, or [CWVD].” J.A. 1082. The jury could have
reasonably concluded, based on the sum of the government’s
evidence, that AGS and CWVD together comprised one medical
practice, that Dr. Saoud controlled the practice, and that Dr.
14
Saoud was attempting to conceal these facts when he signed the
May 2009 affidavit.
Count five alleged that, in October 2009, Dr. Saoud sent a
letter to an Internal Revenue Agent stating “that he had ‘no
relationship with [CWVD] since it was sold . . . in the third
quarter of 2005.’” J.A. 94. The government produced this
letter at trial. Dr. Scott’s, Daniel’s, and Dr. Peasak’s
testimonies that they never owned CWVD support the conclusion
that, contrary to what he wrote in the October 2009 letter, Dr.
Saoud had an ongoing relationship with CWVD after August 2005.
In count six, the grand jury alleged that, after Dr. Scott
stopped working for CWVD in June 2009, Dr. Saoud “solicited [Dr.
Swisher] to be [Dr. Saoud’s] lab director without advising [Dr.
Swisher] that his name and provider number would be used for
billing and that the relevant lab services involved
dermatological pathology.” J.A. 96. Similarly, the grand jury
charged Dr. Saoud in count seven with having “knowingly and
willfully aided, abetted, counseled, commanded, induced, and
procured the request for [Dr. Swisher] to sign a Medicare
Enrollment Application for CWVD.” Id. The government
introduced evidence that Dr. Saoud approached Dr. Swisher, a
longtime acquaintance, to become CWVD’s lab director. Dr.
Swisher testified that he thought he “would just be signing off
on the certification and policies.” J.A. 1197. Dr. Swisher
15
agreed, and Dr. Saoud brought paperwork, including a Medicare
application, to Dr. Swisher’s office. Dr. Swisher signed the
Medicare application because he “assumed that was required to be
[Dr. Saoud’s] lab director.” J.A. 1201. Thereafter, Dr.
Swisher had no involvement with CWVD; he “never gave permission
for [his] name or numbers to be used for billing.” J.A. 1205.
Nonetheless, CWVD billed insurance companies for dermatological
pathology services that Dr. Swisher ostensibly provided. A
reasonable jury could conclude from this testimony that Dr.
Saoud fraudulently obtained Dr. Swisher’s signature in order to
use Dr. Swisher’s name for dermatological billings.
Counts eight through thirteen charged Dr. Saoud with six
counts of health care fraud based on bills submitted by CWVD to
six insurance companies indicating that Dr. Swisher had
performed dermatological services. A reasonable jury could have
concluded that these bills were fraudulent, and that Dr. Saoud
executed CWVD’s scheme to submit these fraudulent bills. Dr.
Swisher’s testimony supports the conclusion that he did not bill
for these services. And a reasonable jury could conclude that
Dr. Saoud controlled CWVD based on the evidence that he never
sold CWVD and Dr. Swisher’s testimony that Dr. Saoud recruited
him to be CWVD’s lab director.
16
ii.
We turn now to Dr. Saoud’s five convictions for making a
false oath or account in relation to a bankruptcy case. Dr.
Saoud filed for bankruptcy on behalf of AGS in May 2009. He
subsequently testified under oath three times: at creditors
meetings in June 2009 and August 2009, and at a May 2010
deposition. The jury convicted Dr. Saoud of making one false
statement during his August 2009 testimony and four false
statements at his deposition, all in violation of 18 U.S.C. §
152(2). 3 Dr. Saoud argues that the government failed to
introduce evidence that anything he said was materially false.
We address each of the five counts in turn.
The grand jury alleged in count twenty-three that, during
his August 2009 testimony, Dr. Saoud “falsely testified under
oath that he was not the president of [AGS] as of May 12, 2009.”
J.A. 105. The government presented evidence that Dr. Saoud gave
this testimony. The government also introduced an affidavit
that Dr. Saoud signed in May 2009 in which Dr. Saoud identifies
himself as “the president and CEO of AGS.” J.A. 1081–82. A
reasonable jury could have concluded from this evidence that Dr.
Saoud was acting as AGS’s president on May 12, 2009.
3
Section 152(2) prohibits a person from “knowingly and
fraudulently mak[ing] a false oath or account in or in relation
to any case under [the Bankruptcy Code].” 18 U.S.C. § 152(2).
17
The remaining four counts of conviction pertain to Dr.
Saoud’s May 2010 deposition testimony. Count twenty-six alleged
that Dr. Saoud “falsely testified under oath that he did not
have any connection with [CWVD].” J.A. 106. The jury heard
evidence that Dr. Saoud testified that he had no connection with
CWVD after selling the practice to Dr. Scott in August 2005.
The jury could have concluded that this testimony was false
based on Dr. Scott’s testimony that he never owned CWVD.
Count twenty-seven charged Dr. Saoud with having “falsely
testified under oath that he did not have any further
involvement with AGS after its purported sale in March[] 2006.”
J.A. 106. The jury heard evidence that Dr. Saoud testified that
he had “no further involvement with AGS” after selling it to
Daniel in March 2006. J.A. 1126. The jury could have concluded
that this statement was false based on Dr. Saoud’s May 2009
affidavit stating that he was “the president and CEO of AGS.”
J.A. 1081–82.
In count twenty-eight, the grand jury alleged that Dr.
Saoud “falsely testified under oath that [CWVD] is a ‘totally
different corporation’ from AGS ‘that actually saw a totally
different group of patients in different towns.’” J.A. 106.
The government presented evidence that Dr. Saoud gave this
testimony at his May 2010 deposition. The jury also heard
evidence that conflicted with this testimony. One witness
18
agreed that “[CWVD] provided the same services to the vast
majority of the same patients of AGS.” J.A. 532–33. That
witness also confirmed that the patients of both entities went
to “a lot of the same clinics” in the “same office.” J.A. 533.
This testimony supports the conclusion that Dr. Saoud testified
falsely when he said that AGS and CWVD saw different patients.
Count thirty alleged that Dr. Saoud “falsely testified
under oath that he ‘was not involved’ in the sale of . . .
[AGS]’s pathology business to [CWVD].” J.A. 107. As the jury
heard, Dr. Saoud testified that he recommended that AGS sell its
pathology business to CWVD, but was “not involved in the sale.”
J.A. 1157. However, Dr. Scott testified that, after he
discovered that Dr. Saoud was receiving a “large amount of
money” from AGS’s pathology business, Dr. Saoud told him that
he, Dr. Scott, would be “buying [that business] for two hundred
and forty, two hundred and fifty thousand a year for four or
five years.” J.A. 921; see also id. at 922. In addition, Dr.
Swisher testified that Dr. Saoud recruited him to be CWVD’s lab
director. The evidence provided by Dr. Scott and Dr. Swisher
supports the inference that Dr. Saoud orchestrated the sale of
AGS’s pathology business.
iii.
In his final two challenges to the sufficiency of the
evidence, Dr. Saoud argues that his two tax-related convictions
19
must be reversed. He claims that AGS’s and CWVD’s tax returns
show that “all of [his] statements were correct.” Appellant’s
Br. at 29. 4
The jury convicted Dr. Saoud of corruptly endeavoring to
obstruct and impede the due administration of internal revenue
laws, in violation of 26 U.S.C. § 7212(a), and making a false
statement to a federal agent, in violation of 18 U.S.C.
§ 1001(a)(3). 5 The grand jury alleged that Dr. Saoud committed
4
Dr. Saoud also argues that the district court erred by not
permitting him to question Special Agent Jeffrey James about a
report that Special Agent James prepared. See Appellant’s Br.
at 29–30. Dr. Saoud argued at trial that this report should
have been admitted because it “indicat[es] that there are
records that have been destroyed.” J.A. 1332. The district
court ruled that Dr. Saoud could not cross-examine Special Agent
James about this report because “the fact that there may be some
records that have been destroyed that relate to [Dr. Saoud] is
not sufficient for [Dr. Saoud] to start inquiring about it.”
J.A. 1333. Dr. Saoud speculates on appeal that the destroyed
documents may have included a signed copy of the February 2008
resolution referenced in count one. This speculation does not
establish that the district court abused its discretion by
forbidding Dr. Saoud to ask about the report, and it does not
establish that insufficient evidence supported either of Dr.
Saoud’s tax-related convictions.
5
Section 7212(a) criminalizes, among other acts, “corruptly
. . . obstruct[ing] or imped[ing], or endeavor[ing] to obstruct
or impede, the due administration of [the Internal Revenue
Code].” 26 U.S.C. § 7212(a). A person violates § 1001(a)(3)
where, “in any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the United
States, [that person] knowingly and willfully,” 18 U.S.C. §
1001(a), “makes or uses any false writing or document knowing
the same to contain any materially false, fictitious, or
fraudulent statement or entry,” id. § 1001(a)(3).
20
both crimes 6 by “falsely stating in a[n] October 5, 2009 letter
to a Revenue Agent of the Internal Revenue Service that [Dr.
Saoud] was not an officer of [AGS], and that he had ‘no
relationship with [CWVD] since it was sold . . . in the third
quarter of 2005.’” J.A. 102; accord J.A. 108.
The government introduced evidence that, in October 2009,
Dr. Saoud sent a letter to an Internal Revenue Agent stating
that he “d[id] not own any portion of AGS,” that he was not an
officer of AGS, and that he had “no relationship with [CWVD]
since it was sold to [Dr. Scott] in 2005.” J.A. 1237–38. Dr.
Saoud argues that these statements could not form the basis for
a conviction under § 7212(a) or § 1001(a)(3) because the
statements were truthful. He explains that the evidence
demonstrated that “Daniel owned [AGS] and [Dr. Scott] owned
[CWVD]” because “tax returns filed with the Internal Revenue
Service . . . listed [Daniel] as 100% owner of [AGS] and [Dr.
Scott] as 100% owner of [CWVD].” Appellant’s Br. at 29. At
most, Dr. Saoud establishes that some evidence supported his
6
Dr. Saoud argues that these counts were multiplicitous
because they concern the same act. Appellant’s Br. at 30–31.
“Multiplicity is ‘the charging of a single offense in several
counts.’” United States v. Lawing, 703 F.3d 229, 235 n.7 (4th
Cir. 2012) (quoting United States v. Burns, 990 F.2d 1426, 1438
(4th Cir. 1993)). The tax-related counts were not
multiplicitous because a defendant commits two offenses by
violating both § 7212(a) and § 1001(a)(3).
21
version of the facts. 7 But Dr. Saoud cannot carry his burden by
pointing to evidence that supports his position; at this point,
he must show that the government failed to present evidence
sufficient to support the verdict. And the record establishes
that sufficient evidence supported the jury’s conclusion that
Dr. Saoud’s October 2009 letter contained a materially false
statement. For example, Dr. Saoud stated in the letter that he
had no relationship with CWVD after August 2005, but, as we have
already discussed, the government introduced evidence that Dr.
Saoud never actually sold CWVD.
C.
Dr. Saoud argues that jury misconduct tainted his trial
because “two jurors failed to answer [the district court’s
questions] truthfully during voir dire” and “the jury failed to
7
Dr. Saoud submits that the tax returns listing Daniel and
Dr. Scott as the owners of AGS and CWVD should have “estopped
[the Government] from claiming [that] Dr. Saoud owned [CWVD] or
[AGS] after the entities were sold.” Appellant’s Br. at 23;
see also id. at 24 (arguing that Daniel is estopped from
disclaiming ownership because the bankruptcy court found that
she waived any objection to defects in the bankruptcy petition).
Dr. Saoud supports his argument by citing In re Breibart, 325
B.R. 724 (Bankr. D.S.C. 2004), in which a bankruptcy court noted
that “quasi-estoppel forbids a party from accepting the benefits
of a transaction or statute and then subsequently taking an
inconsistent position to avoid the corresponding obligations or
effects.” Id. at 727 (quoting In re Robb, 23 F.3d 895, 898 (4th
Cir. 1994)) (internal quotation marks omitted). This case does
not support Dr. Saoud’s argument because the government, which
is the relevant party here, took no inconsistent positions.
Inaccurate information provided by taxpayers does not bind the
government.
22
follow the [district court’s] instruction regarding
deliberation.” Appellant’s Br. at 31–34. We disagree.
With respect to voir dire, Dr. Saoud alleges that one juror
“is a previous patient of [Dr. Scott]” who failed to inform the
court of this fact when it asked if anyone knew Dr. Scott.
Appellant’s Br. at 31. Dr. Saoud also alleges that another
juror “works at the Veteran’s Administration nursing home[] with
[prosecution] witness James B. Hill,” and that this juror failed
to respond when the court asked whether any member of the jury
knew Dr. Hill. Id. at 33. Dr. Saoud has not shown that he is
entitled to a new trial based on these alleged acts of
dishonesty because, among other reasons, he has not shown that
the jurors’ “motives for concealing information . . . affect[ed]
the fairness of [his] trial.” McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 556 (1984); accord Conaway v. Polk, 453
F.3d 567, 588 (4th Cir. 2006). Indeed, he does not suggest a
possible motive for concealing this information.
With regard to the district court’s deliberation
instruction, Dr. Saoud notes that the jury deliberated for only
“112 minutes” after the district court added the second
alternate juror. Appellant’s Br. at 34. He argues that this
timeline establishes that the jury failed to follow the district
court’s instruction to the jury that it “deliberate with each
other with regard to each and every Count.” J.A. 1983.
23
The length of the jury’s deliberation here does not
overcome the general presumption that “juries follow courts’
instructions.” United States v. McLaurin, 764 F.3d 372, 391
(4th Cir. 2014). The transcript indicates that the jury
deliberated for at most 137 minutes after the second alternate
juror joined the jury. 8 This timeline does not establish juror
misbehavior because nothing prevented the jury from deliberating
over thirty-two counts in just over two hours. We agree with
our sister circuits that “brief jury deliberation alone is not a
sufficient basis for a new trial.” United States v. Aguilera,
625 F.3d 482, 487 (8th Cir. 2010) (citing cases from the First,
Fifth, and Seventh Circuits).
D.
Dr. Saoud argues that his sentence is procedurally
unreasonable because it “was driven by the loss claimed by the
Government in health care dollars when in actuality, the
Government sustained no loss.” Appellant’s Br. at 37. We find
no error.
At sentencing, the district court applied an eighteen-level
enhancement after determining that Dr. Saoud “intended” to cause
8
Dr. Saoud writes that the jury deliberated for at most 112
minutes because jury deliberations resumed at “1:00 pm” and
concluded at “2:53 pm.” Appellant’s Br. at 34. However, the
transcript indicates that the jury left the courtroom at “12:35
p.m.,” J.A. 1984, and the district court announced at “2:52
p.m.” that the jury had reached a verdict, J.A. 1985.
24
a loss of $2.9 million. J.A. 2296–97; see also U.S.S.G. § 2B1.1
cmt. n.3(A) (providing that “loss is the greater of actual loss
or intended loss”). The district court arrived at this number
by combining the amounts that Dr. Saoud attempted to recoup from
AGS and CWVD after purportedly selling those companies.
Dr. Saoud argues that the loss calculation was erroneous
because the government failed to show that it sustained any loss
from Dr. Saoud’s fraud. But the district court did not base its
calculation on the losses Dr. Saoud actually caused the
government; it based it on the money that Dr. Saoud intended to
gather when he tried to collect $2.9 million from AGS and CWVD
after ostensibly selling those practices. Dr. Saoud’s argument
fails because it does not purport to address the district
court’s reasoning.
E.
Dr. Saoud’s final argument on appeal is that the district
court’s $1,243,118.29 forfeiture determination is erroneous
because that sum is not traceable to any health care offense.
See Appellant’s Br. at 34–36. We find no error.
Federal law provides that, when “imposing sentence on a
person convicted of a Federal health care offense,” a district
court “shall order the person to forfeit property . . . that
constitutes or is derived, directly or indirectly, from gross
proceeds traceable to the commission of the offense.” 18 U.S.C.
25
§ 982(a)(7). Here, the district court ordered Dr. Saoud to
forfeit $1,243,118.29 after finding that the government had
proven at trial that this amount was “traceable to the
defendant’s healthcare fraud.” J.A. 2332. The district court
explained that Dr. Saoud would not have received “payments from
the fraudulent sale of AGS, loan repayments by [CWVD], payment
for professional fees, [or] rent payments for use of facilities
and equipment” but for his “fraud scheme.” Id.
Dr. Saoud argues that he should not have to forfeit all of
his proceeds from AGS and CWVD because those practices provided,
and appropriately received compensation for, dermatological
services. See Appellant’s Br. at 35 (“It is undisputed that no
fraudulent billing took place involving [AGS] and [CWVD] in this
alleged scheme.”). We find Dr. Saoud’s argument unpersuasive
because § 982(a)(7) mandates forfeiture of “gross proceeds
traceable to the commission of the offense.” 18 U.S.C. §
982(a)(7) (emphasis added). The term “‘gross proceeds’ is
properly interpreted to include the total amount of money
brought in through the fraudulent activity, with no costs
deducted or set-offs applied.” United States v. Poulin, 461 F.
App’x 272, 288 (4th Cir. 2012) (per curiam). Here, the
government presented evidence that Dr. Saoud orchestrated a
fraudulent scheme whereby he concealed his interests in AGS and
CWVD in order to circumvent the terms of the settlement
26
agreement. Every dollar that he received from these practices
after his fraud began constitutes “gross proceeds” traceable to
that fraud.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
27