United States v. Sharp

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4932
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN C. SHARP,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Irene M. Keeley, District
Judge. (2:07-cr-00019-IMK-JSK-1)
Argued: September 22, 2010 Decided: November 5, 2010
Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and
James C. DEVER III, United States District Judge for the Eastern
District of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Paul Harris, Wheeling, West Virginia, for Appellant.
Alan McGonigal, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellee. ON BRIEF: Joseph M. Spivey,
Lexington, Virginia; Joseph A. Wallace, Elkins, West Virginia,
for Appellant. Betsy C. Jividen, Acting United States Attorney,
Charleston, West Virginia, Randolph J. Bernard, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Dr. John C. Sharp (“Sharp”) appeals his convictions upon
twenty-nine counts of health care fraud, in violation of 18
U.S.C. § 1347. On appeal, Sharp alleges numerous errors, which
this Court has construed 1 as including, but not limited to: that
the district court abused its discretion by allowing certain
statistical evidence at trial and by allowing testimony from a
non-physician medical billing and coding expert, that Sharp was
deprived of his right to testify on his own behalf,
prosecutorial misconduct, that certain counts in the indictment
were time-barred, and that § 1347 was inapplicable. For the
following reasons, we affirm the district court’s judgment.
1
Recounting the issues on appeal has proven challenging, as
the arguments are difficult to discern from Sharp’s briefs.
Sharp has also violated Federal Rule of Appellate Procedure
28(a)(9)(B) by failing to include an applicable standard of
review for any of the issues he raises. However, we note that
during oral argument counsel conceded that the Government’s
proposed standards of review are accurate.
Although Sharp failed to satisfy the mandates of Rule 28,
which in many instances may result in dismissal of the appeal,
see, e.g., Harrelson v. Lewis, 418 F.2d 246, 247 (4th Cir.
1969), this Court has a “measure of discretion . . . whereunder
it may consider an appellant’s claim of error, even despite its
inadequate assertion, especially when the pertinent record
appears fully to be before the court, and the controverted
questions have actually been argued.” Indemnity Ins. Co. of N.
Am. v. Pioneer Value Sav. Bank, 343 F.2d 634, 643 (8th Cir.
1965). We exercise that discretion in this case with the
admonition to Sharp’s counsel that they should take greater care
in future appeals.
3
I.
Sharp was a doctor of osteopathic medicine and licensed to
practice in the state of West Virginia. He operated a general
family practice medical clinic under the name Pocahontas Medical
Clinics (“PMC”).
Sharp was enrolled as a provider with Medicare, Medicaid,
and the West Virginia Workers’ Compensation Program (“WVWC”).
These third party payers pay claims using a national billing
coding practice based on the Physicians’ Current Procedural
Terminology (“CPT”) system, which is published in the AMA
Current Procedural Terminology Manual (“CPT Manual”). The CPT
Manual provides codes for each of the services provided to the
program’s beneficiaries by the provider, with descriptions of
each. The codes are meant to account for the length of the
doctor’s visit with the patient, the complexity involved in the
medical decision making, and the patient’s medical history.
Each of the counts against Sharp charged that he knowingly
and fraudulently misused the billing codes. The charges
represent three general schemes: (1) the fraudulent misuse of
so-called “prolonged services” codes, which are codes that are
used for a visit that requires face-to-face time with the
patient that is longer than the typical time spent rendering
that type of procedure or service; (2) “upcoding,” or submitting
4
claims for a “higher” level service than the one actually
rendered; and (3) billing for services not rendered.
During trial, the Government called two expert witnesses
whose testimonies are relevant to this appeal. The first was
Betty Stump (“Stump”), a medical coding and billing expert. In
sum, Stump testified that she reviewed the office visit progress
notes maintained by Sharp and determined that Sharp’s billings
were not supported by the documentation. The Government also
called Dr. Klaus Miescke (“Miescke”), a statistician. Because
Sharp submitted over 15,000 claims to the third party payers
during the relevant time period, the Government asked Miescke to
“select a statistically valid random sample” of the claims to
determine the estimated total amount of loss to Medicare and
Medicaid. (Appellee’s Br. 11).
At the conclusion of trial, the jury returned a verdict
convicting Sharp on all counts, and he was sentenced to 36
months’ imprisonment.
Sharp moved for a new trial, or in the alternative, for a
judgment of acquittal, alleging multiple errors which included
ineffective assistance of counsel, that certain counts of the
superseding indictment were time-barred, prosecutorial
misconduct, that 18 U.S.C. § 1347 was inapplicable to worker’s
compensation programs, that the district court erred by allowing
Miescke’s and Stump’s testimonies, insufficiency of the
5
evidence, that the district court erred by not including a
proposed jury instruction, and challenges to several trial
rulings. After holding a post-trial hearing, the district court
denied Sharp’s motion in a written order.
Sharp noted a timely appeal, and this Court has
jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
II.
A.
Sharp argues that the district court erred by allowing
certain expert testimony at trial; namely, that Miescke’s use of
statistical extrapolation to estimate loss was allowed in error,
and that Stump’s testimony was allowed in error because she is
not a physician. 2
This Court reviews a district court’s evidentiary rulings,
including rulings on the admissibility of expert testimony, for
abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136,
2
In his brief, Sharp originally frames these issues as
alleging that the “Government failed to meet its burden by not
providing expert testimony from a physician,” (Appellant’s Br.
1), and that “[i]ntroduction of evidence contained in paragraphs
10, 11 and 12 of the Superseding Indictment were unduly
prejudicial because statistical evidence is not appropriate at
trial.” (Appellant’s Br. 2). We have reframed the issues in an
attempt to make sense of Sharp’s convoluted opening brief while
endeavoring to sufficiently address the substance of his claims.
6
141-42 (1997). “The question of whether expert testimony is
admissible is within the sound discretion of the trial judge,
and appellate courts normally defer to the trial judge’s
decision.” Persinger v. Norfolk & W. Ry. Co., 920 F.2d 1185,
1187 (4th Cir. 1990).
1.
Before trial, Sharp moved to exclude Miescke’s testimony,
arguing during a pre-trial Daubert hearing that “it is
inappropriate at the count phase for there to be extrapolation
testimony that goes to the amount of the loss. . . . [T]hat is a
sentencing issue, if we ever get there . . . .” (J.A. 422). The
district court considered the issue and decided to allow the
testimony.
Sharp raised the issue again in his motion for a new trial
or for acquittal. The district court held that, “[a]fter
weighing the parties’ arguments, [the district court] has no
trouble concluding that Dr. Miescke’s statistical testimony was
properly admitted, . . . and survives the defendant’s challenge
under Federal Rule of Evidence 403 because its probative value
substantially outweighed any unfair prejudice to the defendant.”
(J.A. 323).
Although Miescke’s statistical evidence would also have
been appropriate during the sentencing phase of the trial, we
7
find that the district court did not abuse its discretion by
allowing the testimony during trial. See United States v. Rosin,
263 Fed. Appx. 16, 21 (11th Cir. 2008) (unpublished) (mentioning
the use of similar testimony during trial). First, we note that
Miescke “provide[d] a valid foundation” for his conclusions by
explaining how he reviewed the claims, the statistical methods
he used, and how he arrived at his proposed estimate of loss.
Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 200 (4th Cir.
2001); see Fed. R. Evid. 702. Indeed, Sharp does not contest
Miescke validly qualified as an expert witness nor does Sharp
contend Miescke applied statistically invalid methods. 3
Furthermore, Miescke’s testimony was relevant pursuant to
Federal Rule of Evidence 402; it gave the jury context as to the
extent of the alleged loss, and conducting testimony as to
approximately 15,000 claims of fraud would have been overly
burdensome. Nor was the testimony improperly prejudicial
pursuant to Federal Rule of Evidence 403, particularly
considering that there was overwhelming evidence of guilt as to
each count. More importantly, Miescke never opined as to
Sharp’s actual guilt or the existence of fraud. See United
3
In fact, during the Daubert hearing defense counsel agreed
that “[w]e don’t have a problem conducting the cross-examination
at this stage with the statistician coming forward and saying
this is what I did; this is how I arrived at this random sample
. . . .” (J.A. 423).
8
States v. Sdoulam, 398 F.3d 981, 990 (8th Cir. 2005) (“[The
expert statistician] made no statement regarding the
mathematical probability that [the defendant] was guilty of the
crimes charged.”).
Moreover, we can analogize Miescke’s testimony to the
methods used to determine total drug amounts in drug trafficking
cases, which, while often conducted during the sentencing phase,
have at times been testified to during trial. See, e.g., United
States v. Tran, 519 F.3d 98, 106 (2d Cir. 2008); Sdoulam, 398
F.3d at 989-90; United States v. Royal, 87 Fed. Appx. 892, 894
(4th Cir. 2004) (unpublished); United States v. Maceo, 873 F.2d
1, 6-7 (1st Cir. 1989).
Finally, defense counsel had the opportunity to cross-
examine Miescke and thus was able to challenge Miescke’s method
of analysis or his conclusions. Ultimately, it is the role of
the jury to arrive at its own conclusions as to the credibility
of the experts and the weight to give their testimony. See
Maceo, 873 F.2d at 7 (“It is the jury’s role to determine the
credibility of witnesses and the weight to accord their
testimony. After full cross-examination, the jury had the
choice whether to trust the testimony presented.”). On balance,
the district court’s ruling was thus an appropriate exercise of
its discretion.
9
2.
Sharp also moved to exclude Stump’s proposed testimony,
arguing during the Daubert hearing that, although “[s]he can
make a judgment as to whether or not the documentation supports”
the code used, (J.A. 508), “she cannot render an opinion as to
whether or not a particular medical decision should have been
labeled low, moderate, high in terms of complexity . . . . Only
a physician can determine that.” (J.A. 506). The district court
denied the motion, finding that
a coding expert, such as Ms. Stump, routinely
determines whether services billed by a provider are
appropriately coded and if a provider documents a
certain level of medical decision making, then the
documentation is factored into the coding and billing
decisions and I don’t believe that this testimony will
confuse the jury. I think it will be helpful to the
jury.
(J.A. 510).
Sharp raised the issue a second time in his motion for a
new trial or for acquittal. In the district court’s order
denying the motion, the court found that
[t]he issues in this case did not involve questions of
medical necessity, but rather alleged that Dr. Sharp
had submitted claims for payment for services he had
never rendered, or had sought reimbursement for higher
levels of service than he had actually provided. In
similar health care fraud cases, coding experts have
routinely testified about whether services a provider
billed were appropriate. . . .
Because this case did not raise issues of medical
necessity or any other clinical issue requiring a
physician’s testimony, and because the use of a coding
expert was appropriate, . . . the Court rejects
10
Sharp’s contention that the government was required to
provide expert physician testimony to prove health
care fraud . . . .
(J.A. 325-26).
On appeal, Sharp reiterates this argument. In support,
Sharp cites several cases from other courts of appeals which he
contends stand for the proposition that physician testimony is
necessary to prove coding or billing fraud, including United
States v. Wexler, 522 F.3d 194 (2d Cir. 2008), United States v.
Bek, 493 F.3d 790 (7th Cir. 2007), and others. However, these
cases are clearly distinguishable from the case at bar.
The Second Circuit held in Wexler, a distribution of
controlled substances and health care fraud case, that the
expert testimony of a physician expert “regarding the standard
of care . . . was properly received by the District Court as
relevant to the question of Wexler’s good faith in prescribing
the controlled substances that were the subject of the
indictment.” Wexler, 522 F.3d at 204 (emphasis added). In Bek,
another case dealing with the distribution of controlled
substances and health care fraud, the Seventh Circuit held that
the jury could not assess whether Bek’s treatment of a patient
was “within the normal course of professional practice” without
medical records or expert testimony as to the patient’s
“condition or Bek’s treatment of her.” 493 F.3d at 799 (internal
quotations omitted).
11
However, in the case at bar neither clinical decision
making nor appropriate standards of care were at issue.
Instead, the question was whether Sharp knowingly used incorrect
codes for the services he claimed he provided. As Stump
testified,
as a coder or an auditor I’m not making any decisions
about the treatment plan for the patient; I’m just
looking to see what did the doctor document; what did
he write down that the patient’s problem is; what did
he write down that his treatment plan is going to be.
What did he write down about when he wants to see the
patient back. What did he write down about possible
risks to the patient. I don’t question what the
medical plan was; I simply evaluate it to determine
where it falls in the scope of severity for assigning
a code.
(J.A. 1163). Medical billing and coding experts have been used
for this purpose without dispute in the Fourth Circuit. See,
e.g., United States v. Janati, 374 F.3d 263, 271-72 (4th Cir.
2004) (noting that medical coding experts are used “to determine
whether . . . documentation supports . . . billings under [the]
CPT”).
Finally, we observe that during cross-examination defense
counsel questioned Stump about her status as a “coder” who is
“not [a] clinician[] [and that] determinations regarding the
propriety of medical decision making or a patient’s clinical
severity are omitted from the coding process.” (J.A. 1625).
Stump concurred that she does “not make clinical decisions” and
agreed with defense counsel’s statement that she is “not [a]
12
clinician[].” (J.A. 1626). Thus, the argument Sharp makes here
was before the jury and the jury properly performed its duty to
“weigh the evidence and the credibility of each expert.” Mosser
v. Fruehauf Corp., 940 F.2d 77, 83 (4th Cir. 1991) (internal
quotations omitted).
Consequently, as the district court appropriately found,
“all the cases Sharp cites to support his argument that the
government must present physician expert testimony involved
disputed questions of ‘medical necessity.’ By their nature,
these are clinical cases which, unlike the instant case, do
require the testimony of an expert health care provider.” (J.A.
326). Thus, the district court did not abuse its discretion in
permitting Stump’s testimony.
B.
Sharp next alleges that he was deprived of his right to
testify on his own behalf, either as a result of ineffective
assistance on the part of his counsel, or due to the district
court’s failure to sua sponte conduct an on the record colloquy
with Sharp to obtain a waiver of his right to testify.
At a post-trial hearing, Sharp testified that he had
planned to take the stand during trial, and that none of his
lawyers “s[a]t down with [him] and [went] through an analysis .
. . [of] the risk of . . . testifying, the benefit of
13
testifying, risk of not testifying, benefit of not testifying.”
(J.A. 3700). Although Joel Hirschhorn (“Hirschhorn”), lead
trial counsel for Sharp, admitted that he was not sure whether
he said the “magic words,” he was sure that he had discussions
with Sharp about whether he would testify, and that Sharp
“concurred in [his] decision.” (J.A. 3815).
The district court found that “I don’t have a circumstance
here where I believe I had to get an on the record waiver of the
right to testify because I didn’t have any language or conduct
from Dr. Sharp that would indicate that he was desirous to
testify and that desire was being contravened by his attorneys.”
(J.A. 3864). The district court also found:
I don’t think that it’s credible to believe that Dr.
Sharp was unaware of his lawyers’ strategic opinion
about the wisdom of him taking the stand.
. . . .
[I]t is difficult, if not impossible, for this Court
to believe that a man of Dr. Sharp’s experience and
intellect would not have questioned why no one was
preparing him for testimony the next day.
. . . .
Dr. Sharp had an ample opportunity between the close
of the evidence . . . [and] closing arguments . . . to
tell [his attorneys] that he felt he’d been denied
what he had expected, which was the right to testify.
. . . .
So, on balance, when I weigh this evidence, there
is a complete lack of support from the totality of
that evidence for Dr. Sharp’s recollection as to how
this was handled.
(J.A. 3866-71).
14
In its order denying Sharp’s motion for a new trial or for
acquittal, the district court adopted these previous findings,
and further found that “there was no agreement between Sharp’s
trial counsel and the government to deprive Sharp of his right
to testify.” (J.A. 310).
This Court reviews legal issues de novo and factual
findings under a clear error standard. United States v.
Pettiford, 612 F.3d 270, 275 (4th Cir. 2010).
1.
This Court construes Sharp’s allegation that his trial
counsel “violated West Virginia Rules of Professional Conduct"
as an attempt to make an ineffective assistance of counsel
argument. See Sexton v. French, 163 F.3d 874, 881 (4th Cir.
1998). However, “[t]he rule in this circuit is that a claim of
ineffective assistance should be raised in a 28 U.S.C. § 2255motion in the district court rather than on direct appeal,
unless the record conclusively shows ineffective assistance.”
United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992).
Because we find that it does not conclusively appear from the
record that Sharp’s counsel was constitutionally ineffective,
this Court will not consider Sharp’s ineffective assistance of
counsel claim.
15
However, even assuming arguendo that we could consider this
claim on appeal, this Court finds that the district court did
not clearly err in making the well-reasoned and detailed finding
that it was “not credible” that Sharp was “unaware” of his right
to testify on his own behalf or of the strategic decision not to
testify, and that there was a “complete lack of support from the
totality of that evidence for Dr. Sharp’s recollection as to how
this was handled.” (J.A. 3870).
2.
Sharp also urges this Court to adopt “a rule that in cases
such as the one at bar, the trial court itself is required to
engage in an on-the-record colloquy with defendants when they
elect to rest their case without testifying,” (Appellant’s Br.
13), and to find that the district court failed in this new
duty.
Although, of course, the right to testify on one’s own
behalf “is one of the rights that ‘are essential to due process
of law in a fair adversary process,’” Rock v. Arkansas, 483 U.S.
44, 51 (1987) (quoting Faretta v. California, 422 U.S. 806, 819
n. 15 (1975)), this Court and the majority of our sister
circuits have clearly held that “[t]o waive the right [to
testify], all the defendant needs to know is that a right to
testify exists,” and the district court need not advise the
16
defendant of the right nor obtain a waiver. United States v.
McMeans, 927 F.2d 162, 163 (4th Cir. 1991); see also United
States v. Richardson, 195 F.3d 192, 197-98 (4th Cir. 1999);
United States v. Ortiz, 82 F.3d 1066, 1070-71 (D.C. Cir. 1996);
United States v. Pennycooke, 65 F.3d 9, 11-12 (3d Cir. 1995)
(holding that a “direct colloquy” may be required in
“exceptional, narrowly defined circumstances”); United States v.
Brimberry, 961 F.2d 1286, 1289-90 (7th Cir. 1992); Siciliano v.
Vose, 834 F.2d 29, 30 (1st Cir. 1987).
The holding in McMeans has not been overruled, altered, or
limited by the subsequent holding in Sexton, contrary to Sharp’s
suggestion. In considering the question of “who should bear the
burden of ensuring that the defendant is informed of the nature
and existence of the right to testify,” the Sexton Court noted
that the McMeans Court’s holding on this point was “perhaps
unwise[].” 163 F.3d at 881. Nevertheless, the Sexton Court held
that “trial counsel, not the court, has the primary
responsibility for advising the defendant of his right to
testify,” and thus “the burden of ensuring that a criminal
defendant is informed of the nature and existence of the right
to testify rests upon trial counsel.” Id. at 882. 4
4
We note that Sharp specifically admitted at the post-trial
hearing that he did know of his right to testify during the
trial:
(Continued)
17
Therefore, because the holdings of McMean and Sexton are
unequivocal on this issue, the question of whether this Court
should adopt Sharp’s proposed “new rule” is foreclosed and
cannot be overruled by this panel. See Mentavlos v. Anderson,
249 F.3d 301, 312 n.4 (4th Cir. 2001).
C.
Sharp next makes three allegations of prosecutorial
misconduct; first, that the Government elicited “false
testimony” from a witness, Lois Workman (“Workman”), by
instructing her to only answer questions using the responses
“yes” or “no;” second, that the Government improperly misstated
the evidence; 5 and third, that the Government improperly exceeded
Q: Now you said that it was your understanding
throughout the whole trial, from beginning to end,
that you would eventually testify, is that right?
A: That’s correct, yes sir.
Q: Okay. Why did you think that?
A: I just knew that’s a fact, that I would testify in
my defense. There was never any question about it.
(J.A. 3712).
5
Although Sharp makes the bare allegation that the
Government “misstated the evidence,” he makes no substantive
argument in his brief supporting this proposition. Sharp has
again run afoul of Federal Rule of Appellate Procedure 28, which
“requires that the argument section of an appellant’s opening
brief must contain the appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the
(Continued)
18
the appropriate scope during its rebuttal argument by mentioning
certain “altered records.”
In its order denying Sharp’s motion for a new trial or for
acquittal, the district court found that Workman
did not answer only “yes” or “no” to questions asked
of her, but provided detailed answers throughout her
testimony. Moreover, . . . the portions of Workman’s
testimony characterized in her affidavit as “not
accurate” were not material to the charges against
Sharp. Accordingly, the evidence adduced at trial and
otherwise found in the record does not support Sharp’s
allegation that the government presented false
testimony during his trial.
(J.A. 316).
As to the allegation that the Government exceeded the
allowable scope during its rebuttal argument, the district court
found that
the complained-of reference to altered records by the
government came in response to the closing argument of
Sharp’s attorney referencing a memo by John Mitchell,
Sharp’s office manager. . . . In addition, he had
argued that fraudulent claims arose due to John
Mitchell’s advice or innocent mistakes, and that
Sharp’s honest and law-abiding nature demonstrated
that he had not knowingly hidden anything.
Even if the government’s statements in response
to this argument could be considered improper, they
did not unfairly prejudice Sharp’s substantive rights;
nor do they amount to reversible error.
record on which the appellant relies.” Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009) (internal
quotations omitted). Thus, this Court will not consider Sharp’s
argument that the prosecutor “misstated the evidence.”
19
(J.A. 317-19).
This Court reviews the denial of a motion for a new trial
for an abuse of discretion. United States v. Adam, 70 F.3d 776,
779 (4th Cir. 1995).
The test for prosecutorial misconduct has two components:
“(1) the prosecutor’s remarks or conduct must in fact have been
improper, and (2) such remarks or conduct must have
prejudicially affected the defendant’s substantial rights so as
to deprive the defendant of a fair trial.” United States v.
Chorman, 910 F.2d 102, 113 (4th Cir. 1990) (internal quotations
omitted).
1.
Although he fails to cite it in his brief, Sharp submitted
a post-trial affidavit from Workman in which she swore that a
few portions of her testimony were inaccurate and that she was
“told by representatives of the Government that [she] was to
answer the questions with a ‘yes’ or ‘no.’” (J.A. 289). We
assume this is Sharp’s support for his charge the Government
presented false testimony. However, even the most cursory
review of Workman’s testimony proves the contrary. During
cross-examination, the Government asked questions of Workman
that required more than a “yes” or “no” response. Consequently,
20
many of Workman’s responses were more detailed and lengthy than
merely “yes” or “no.”
Furthermore, even if Workman were so instructed, Sharp
provides no legal authority to support his argument that
requesting a witness to answer only “yes” or “no” has ever been
construed by any court as improperly eliciting false testimony.
Thus, there is simply no support for Sharp’s brazen accusation
that the Government acted improperly in questioning Workman. 6
2.
Sharp also fails to cite to any legal authority that
supports his proposition that it constitutes reversible error
for the Government’s rebuttal argument to reach matters beyond
the scope of the defendant’s reply argument.
However, even if such a rule exists, the Government’s
reference to altered records was in direct reply to a theory
raised by the defense during closing argument and throughout the
trial; namely, the argument that any discrepancies in Sharp’s
6
We note that Sharp makes a serious charge against the
Government when he states in his brief that “the government
knowingly presented false testimony during trial.” However,
Sharp does so without citation to the record, citation to
authority, and without explanatory argument. In doing so, Sharp
walks close to a line of ethical breach. We strongly caution
counsel that such argument will be dealt with severely should it
occur again. See Federal Rule of Appellate Procedure 46(c).
21
records or billing were caused by “human error mistakes,
typographical errors, data entry, sloppy work, careless work” on
the part of Sharp’s office manager, John Mitchell (“Mitchell”),
or others. (J.A. 3626). During closing, the defense
specifically mentioned the so-called “Mitchell memo” which it
alleged proved that Mitchell encouraged employees to alter
records. The Government properly responded to the defense’s
theory, arguing that Sharp was actually the one altering the
records because he had the most “to lose or gain.” (J.A. 3665).
Consequently, this Court finds that there is no evidence
that the Government engaged in any prosecutorial misconduct in
this case.
D.
Sharp next contends that, because the superseding
indictment was brought after the statute of limitations expired,
and because there were “significant variances” between the
original indictment and the superseding indictment, certain
counts in the superseding indictment are time-barred.
In its order denying Sharp’s motion for a new trial, the
district court held that, “because Sharp did not raise the
affirmative defense of the statute of limitations at trial, he
has waived that defense.” (J.A. 315). Alternatively, the
district court held that “there is no basis to conclude that the
22
Superseding Indictment broadened the charges in the original
Indictment such that the charges in the Superseding Indictment
are barred . . . .” (J.A. 315).
We need not determine whether the changes in the
superseding indictment materially altered certain counts so that
they did not relate back to the date of the original indictment.
As the district court correctly found, because Sharp did not
raise a statute of limitations defense before or during trial,
he has consequently waived that defense. See United States v.
Williams, 684 F.2d 296, 299 (4th Cir. 1982) (“The statute of
limitations . . . is not jurisdictional. It is an affirmative
defense that may be waived.”).
E.
Sharp also argues that 18 U.S.C. § 1347 does not apply to
state-owned and –operated workers’ compensation systems, such as
WVWC, because the statute “does not specifically state that it
applies to state sponsored worker’s compensation programs nor
does the legislative history mention it.” (Appellant’s Br. 24).
The district court found that “Sharp cites no case law nor
any portion of the relevant legislative history in support of
his argument,” and “state workers’ compensation programs clearly
fall under the express provisions of 18 U.S.C. § 1347.” (J.A.
320-21).
23
This Court reviews issues of statutory construction de
novo. United States v. Linney, 134 F.3d 274, 282 (4th Cir.
1998).
Sharp’s argument is wholly without merit. The term
“healthcare benefit program,” as used in § 1347, is defined as
[A]ny public or private plan or contract, affecting
commerce, under which any medical benefit, item, or
service is provided to any individual, and includes
any individual or entity who is providing a medical
benefit, item, or service for which payment may be
made under the plan or contract.
18 U.S.C. § 24(b). Therefore, based on the clear language of the
statute, WVWC plainly falls under the express definition of
“healthcare benefit program.” See, e.g., United States v.
Lucien, 347 F.3d 45, 52 (2d Cir. 2003).
F.
As to Sharp’s remaining claims, we have carefully reviewed
all of these claims, the record, and the parties’ arguments and
find that the district court, for the reasons expressed in its
well-reasoned order denying Sharp’s motion for a new trial or
for acquittal, properly denied relief. 7
7
As to Sharp’s claim that the district court erred during
sentencing, we find that, because Sharp failed to order a
transcript of the sentencing hearing, he has waived this issue
on appeal. See Keller v. Prince George’s County, 827 F.2d 952,
954 n.1 (4th Cir. 1987).
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III.
For the foregoing reasons, the district court’s judgments
are affirmed.
AFFIRMED
25