United States v. Ronald Poulin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4418
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD POULIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:09-cr-00049-MSD-FBS-1)
Argued: October 27, 2011 Decided: January 18, 2012
Before DAVIS and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Richard Klugh, LAW OFFICE OF RICHARD C. KLUGH, Miami,
Florida, for Appellant. Alan Mark Salsbury, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON
BRIEF: Neil H. MacBride, United States Attorney, Alexandria,
Virginia, Katherine Lee Martin, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a trial in the United States District Court for
the Eastern District of Virginia, a jury convicted Ronald Poulin
of one count of health care fraud, in violation of 18 U.S.C.
§ 1347; twenty-six counts of making false statements relating to
health care matters, in violation of 18 U.S.C. § 1035; and one
count of altering records to obstruct an investigation, in
violation of 18 U.S.C. § 1519. The district court sentenced
Poulin to sixty-three months’ imprisonment and ordered
forfeiture of $1,326,852.70 in gross proceeds. Poulin appeals
the conviction, sentence, and forfeiture order. For the reasons
stated below, we affirm.
I.
A.
Poulin, a board-certified internist, owned and operated a
solo hematology/oncology practice in which he treated patients
for blood diseases and cancers. Treatment and billing in
Poulin’s practice involved multiple steps relevant to the facts
of the present case. First, Poulin, after meeting with a
patient, prescribed medications to treat the patient’s
condition. Nurses administered these drugs, often at subsequent
visits. The administering nurse then recorded the drug in the
patient’s file and noted all services provided to the patient
2
that day on a “charge ticket.” Billers collected the charge
ticket and inputted this information into a computer system to
create a “charge summary.” Poulin reviewed the charge summary
at the end of each day, and the billers entered his changes into
the system. They then used this information to bill the
patient’s insurance company. Poulin regularly billed two
federally funded insurance programs, Medicare and TRICARE, in
this manner.
The charges at issue in the present appeal arose out of
Poulin’s alleged overbilling of these programs. At trial, the
government argued that this overbilling took three forms:
1. Poulin billed for greater amounts of chemotherapy drugs
than he actually administered to patients. Although the
administering nurse accurately recorded the amount
provided on the patient’s charge ticket, Poulin changed
the quantity on the daily charge summary.
2. Poulin split 40,000-unit vials of Procrit, an anemia
drug, between patients so that each patient received
20,000 units. But, at Poulin’s instruction, nurses and
medical assistants recorded on charge tickets that each
patient received an entire 40,000-unit vial.
3. Poulin billed office visits in which patients received
chemotherapy drugs and injections under billing code
99213, signifying a “Level 3” visit, even though Poulin
3
knew the office visits did not fulfill the necessary
requirements for this code. 1 The government specifically
argued that a Level 3 visit requires a personal encounter
between the patient and physician, but Poulin billed
under this code for visits where nurses administered
medications without him seeing or examining the patients.
Indeed, the government alleged he was not present in the
office during many of the visits. In billing for these
visits, the practice applied “Modifier 25,” indicating
that the patient received an additional evaluation or
management service in addition to the procedure or
service that was the central purpose of the visit. Here,
therefore, the modifier indicated a patient received a
service in addition to the administration of chemotherapy
or an injection.
1
The Physician’s Current Procedural Terminology Manual
(CPT), which instructs physicians on the proper meaning of
billing codes, describes five levels of office or outpatient
visits for established patients. These range from Level 1, the
least complex, to Level 5, the most complex type of visit. A
patient usually presents with only minimal problems at a Level 1
visit, and the physician generally spends only five minutes
performing or supervising the services provided. The CPT
specifies that a physician need not be present for this type of
visit. In contrast, a Level 5 visit typically involves forty
minutes of face-to-face interaction between the physician and
patient. Level 3 visits usually involve presenting problems of
low-to-moderate severity and require that the physician spend
fifteen minutes face-to-face time with the patient or family.
4
The government initiated an investigation after receiving a
complaint about Poulin’s billing practices. During the course
of this investigation, agents served administrative subpoenas on
Poulin’s practice directing Poulin to produce certain patient
records. After receiving information that Poulin was directing
employees to make changes to the subpoenaed records, agents
responded by executing a search warrant on the practice.
On April 3, 2009, a grand jury returned an indictment
charging Poulin with forty-five counts, seventeen of which were
dismissed before trial. Trial began on the remaining counts on
November 3, 2009. In light of Poulin’s challenge to numerous
evidentiary rulings, disputes over whether charged errors
resulted in prejudice, and Poulin’s contention that there is
insufficient evidence to support his conviction, we review in
some detail the evidence that each party presented at trial.
B.
The government introduced voluminous documentary evidence
and witness testimony during the trial. Nine of Poulin’s former
employees testified during the government’s case-in-chief.
Nurses Kelly Shipman and Idella Thomas testified that they
administered chemotherapy drugs to patients and accurately
recorded the amounts they administered in patients’ charts and
charge sheets. Shipman and Thomas also stated that they
5
performed Procrit injections. With Procrit, they split vials
between patients but recorded on the charge tickets that they
dispensed an entire vial to each patient. Patients who provided
their own vials of Procrit, however, received the entire
quantity. According to Shipman, Thomas told her to do this, and
Thomas attested that Poulin instructed her to administer and
bill Procrit in this manner. Shipman also reported that the
practice had a standing policy to bill office visits in which
patients received injections as Level 3 visits. Thomas likewise
stated that, although she raised concerns that the practice was
billing office visits for patients who only received
chemotherapy as though a physician had seen them, Poulin and
Antoinette Johnson, 2 the office manager, dismissed them.
Finally, Shipman testified that, after Poulin received the
subpoenas for patient records, he informed the staff that he was
performing an audit of patient files. He directed employees to
make changes to files, but Shipman refused to do so because of
“legality” concerns. She subsequently saw Sherry Fann, a
receptionist, and Johnson working on these files and shredding
documents.
2
During the trial, witnesses variously referred to Ms.
Johnson as “Antoinette” and “Annette.” Because Johnson
identified herself as “Antoinette” in her testimony, we use this
name.
6
Three medical assistants—Carrie Applin, Courtney Eure, and
Sharrah Jackson—testified, largely corroborating Thomas’s and
Shipman’s testimony. Applin, who worked for the practice for
four months, recounted that she saw Poulin mark charge tickets
to indicate he performed an office visit even though he had not
seen the patient—for instance, indicating he saw a patient who
received treatment prior to his arrival at the office in the
morning. Eure testified that the office had a standing policy
that, when Poulin prescribed Procrit, the nurses and assistants
should inject 20,000 units but bill for 40,000 units and for a
Level 3 office visit. Eure was also present when the government
subpoenaed medical records. In response to the subpoena, Poulin
asked her and other employees to alter subpoenaed files, but she
refused to follow his instructions because she believed the
conduct was illegal. Jackson, too, testified that the office
had a policy of splitting vials of Procrit and that she refused
Poulin’s request to alter subpoenaed records.
Billers from Poulin’s practice provided testimony regarding
his billing practices with respect to Procrit, chemotherapy
drugs, and office visits. Cherise Hairston testified that
Poulin wrote a note to the billers informing them that “the only
acceptable number of units for [Procrit] is 40,” meaning 40,000,
and he directed her to bill under code 99213 for office visits
that occurred while he was on vacation. Hairston also described
7
charge summaries on which Poulin increased the quantity of
chemotherapy drugs to be billed. Similarly, Amy Hague-Brown
attested that Poulin made changes to drug quantities and office
visit codes on charge summaries. Regarding coding of office
visits, Hague-Brown recounted that when she began to work for
Poulin she billed lab work and chemotherapy visits as Level 1 or
2 visits, but Poulin later instructed her to bill them as Level
3 or 4 visits.
Poulin’s practice employed Michelle Foltz as a biller for
approximately one month. Foltz testified that, during that
time, Poulin regularly increased chemotherapy drug quantities on
charge summaries. Similarly, where a charge summary indicated a
patient had received 20,000 units of Procrit, he changed it to
reflect that the patient had received 40,000 units. Foltz
became concerned about Poulin’s billing practices after patients
called to complain because they paid co-pays for office visits
in which they were not seen by a physician. Foltz reviewed
patient charts and determined that Poulin was billing for Level
3 visits at times when he did not see patients, including for
visits occurring while he was out of the office. When Foltz
confronted Poulin, he informed her it was his practice to bill
office visits in this manner, and he told her that she should
return co-pays to complaining patients but should not correct
the claim with the insurer. Foltz was so uncomfortable with
8
this response that she quit the following day and contacted the
government to report suspected fraud.
Finally, Sherry Fann, who worked as a receptionist in
Poulin’s practice, testified pursuant to an immunity agreement
with the government. Fann conceded that after records were
subpoenaed, she made changes to patient files at Poulin’s
direction. Poulin and office manager Johnson described the
changes as part of a regular audit, but the practice had not
undertaken a similar audit during the four-year period Fann was
employed there. Further, Fann knew that other employees had
refused to participate in the so-called audit, but she agreed to
do so because she “needed [her] job.” Most notably, she
admitted that she copied a nurse’s note drafted by Poulin into
multiple patients’ files, and, following Poulin’s instructions,
she signed the note illegibly.
In addition to the testimony of Poulin’s former employees,
one former patient, Rita Rahn, testified for the government.
Rahn kept a calendar of all of her medical appointments, and she
reported that on days on which Poulin billed for Level 3 office
visits, her calendar indicated she received only lab work and
did not have contact with a physician.
Three government agents testified. Agent Paul Hastings, of
the Department of Defense Criminal Investigative Service, stated
that he served administrative subpoenas on Poulin’s office on
9
July 9, 2008, requiring Poulin to produce certain Medicare and
TRICARE patient records. Hastings further noted that the
government expected these records to be produced in their
original condition. After receiving information that Poulin was
altering the records, Hastings obtained and executed a search
warrant to seize the records. FBI Agent Christopher Emsley also
participated in the search of Poulin’s office, and, through his
testimony, the government introduced documents seized during the
search. During the investigation, Angela Zoubul, an FBI
analyst, compared the patient files seized by the government
with Medicare and TRICARE billing data and with Poulin’s travel
records. In her testimony, Zoubul introduced two charts
summarizing instances in which the records indicated Poulin
billed for inflated quantities of chemotherapy drugs and for
Level 3 office visits that occurred while he was traveling.
Finally, the government presented testimony from Sheila
Stewart and Dan Johnson, representatives of Medicare and
TRICARE, respectively. Each witness, having reviewed the
program’s records, introduced summaries of relevant claims
Poulin submitted to these programs. Of particular note, these
witnesses stated their understanding of the 99213 billing code.
After first reading aloud the relevant portions of the CPT,
Stewart stated that the use of this code indicated that the
10
patient saw Poulin during the visit. Johnson also opined that
this code required the presence of a physician.
In addition to witness testimony, the government introduced
extensive documentary evidence, including patient files, billing
records, and travel records. Most notably, the government
presented documents from patient files that had been or were in
the process of being changed to correlate with services billed.
Original documents that were found during the search of Poulin’s
private office, for instance, had been replaced by altered
documents in patient files. The jury also viewed Poulin’s
handwritten notes instructing Sherry Fann to make specified
changes to drug quantities in patient charts. These notes were
found on Fann’s desk during the search of the practice.
C.
The defense called four witnesses who were employed in
Poulin’s practice at the time of trial. Sharon Guglielmini, a
registered nurse, told the jury that, although nurse Kelly
Shipman initially told her to administer 20,000 units of Procrit
and record 40,000 units, Poulin later provided a written order
that she should administer 40,000 units to each patient. She
conceded on cross-examination, however, that Poulin gave this
order only after the government executed the search warrant on
the practice.
11
Antoinette Johnson, who served as Poulin’s office manager,
testified regarding the so-called audit of subpoenaed patient
files. After taking delivery of the subpoena, Johnson undertook
a review of the subpoenaed files. She testified that she found
numerous errors, including many instances of underbilling. She
asserted that she did not make any changes or add information to
patient files, however, and only compiled information on errors
in a separate document. When cross-examined, Johnson identified
Poulin’s handwriting on notes directing that changes be made so
that the information in patient files corresponded to services
billed.
Lynnette Riner began working for Poulin as a biller in June
2008, shortly before the government served the administrative
subpoenas. She testified that, although Poulin occasionally
made changes to charge summaries, he only downgraded the levels
of office visits—from Level 3 to Level 1, for instance—and he
did not change drug quantities. Carol Cross, another biller,
began working for Poulin in April 2009. Cross corroborated
Johnson’s testimony that a review of Poulin’s records revealed
significant underbilling, but she acknowledged on cross-
examination that underbilling on some claims would not justify
overbilling on other claims. Significantly, Cross conceded that
a Level 3 office visit must include an encounter between the
12
patient and the physician and only a Level 1 visit does not
require the presence of a physician.
At the close of evidence, the district court instructed the
jury on the relevant law. It declined to give several jury
instructions proposed by the defense. The district court also
overruled defense objections to statements made during the
government’s closing arguments. The jury returned guilty
verdicts on all counts submitted to it.
D.
Following the jury trial, on January 11, 2010, the district
court held a hearing to determine the amount of forfeiture
required under 18 U.S.C. § 982(a)(7). At this hearing, Poulin
requested, for the first time, a jury determination of
forfeiture. The district court rejected this request as
untimely and ordered forfeiture of $1,326,852.70, the entire
amount received through fraudulent bills. At sentencing, the
district court, over a defense objection, applied an enhancement
for Poulin’s role as a leader or organizer of criminal activity
and sentenced Poulin within the resulting Guidelines range to
sixty-three months’ imprisonment.
Poulin filed a timely appeal, challenging aspects of his
conviction, his sentence, and the district court’s forfeiture
order.
13
II.
Poulin first challenges several of the district court’s
evidentiary rulings, which we review for abuse of discretion,
United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010). We
will find the district court abused its discretion if its
decision was “guided by erroneous legal principles or rest[ed]
upon a clearly erroneous factual finding.” Id. (quoting Brown
v. Nucor Corp., 576 F.3d 149, 161 (4th Cir. 2009)) (internal
quotation marks omitted). If we find an abuse of discretion,
the defendant will be entitled to a new trial on this ground
unless the error was harmless. Fed. R. Crim. P. 52(a); United
States v. Roe, 606 F.3d 180, 185 (4th Cir. 2010). “[T]o find a
district court’s error harmless, we need only be able to say
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.” Johnson, 617 F.3d
at 292 (quoting United States v. Brooks, 111 F.3d 365, 371 (4th
Cir. 1997)) (internal quotation marks omitted). Where a paucity
of evidence otherwise supports the defendant’s conviction,
erroneously admitted testimony is likely to be important to the
jury’s verdict. See id. at 296. Conversely, “[o]ften in
criminal cases where there is a significant amount of evidence
which inculpates a defendant independent of the erroneous
testimony, the error is considered harmless.” Id. at 295.
14
A.
Poulin argues on appeal that the district court erred in
allowing the Medicare and TRICARE representatives, Stewart and
Johnson, and former biller Michelle Foltz to testify as lay
witnesses regarding the meaning of Medicare billing codes. He
specifically objects to their testimony that billing code 99213
(i.e., a Level 3 office visit) requires the presence of a
physician. In addition, Poulin contends that the government
improperly elicited the testimony of a lay witness, Agent
Hastings, regarding the effect of the administrative subpoena on
Poulin’s right to alter the subpoenaed records.
Under Federal Rule of Evidence 701, a lay witness may
provide opinion testimony that is “(a) rationally based on the
perception of the witness, (b) helpful to a clear understanding
of the witness’ testimony or the determination of a fact in
issue, and (c) not based on scientific, technical, or other
specialized knowledge.” Fed. R. Evid. 701. An opinion based on
“specialized knowledge,” in contrast, may be provided by an
expert witness only after certain conditions are satisfied. See
Fed. R. Evid. 702. We have recognized that, often, this
“distinction . . . ‘is a fine one’ and ‘not easy to draw.’” Roe,
606 F.3d at 185 (quoting United States v. Perkins, 470 F.3d 150,
155 (4th Cir. 2006)).
15
It is unnecessary in the present appeal to determine on
which side of this fine line the contested testimony falls
because, even assuming arguendo it was admitted in error, we can
identify no harm that resulted. Poulin asserts that Johnson,
Stewart, and Foltz should not have been permitted to opine that
a Level 3 office visit requires the presence of a physician. A
defense witness, however, provided identical testimony. Carol
Cross testified without objection that only a Level 1 office
visit does not demand interaction between the patient and the
physician, and she agreed that a Level 3 visit requires an
encounter between the patient and the physician. Under these
circumstances, we find that the jurors’ judgment could not have
been substantially swayed by the testimony of the government
witnesses.
Even absent Cross’s testimony, the potential for harm from
the witnesses’ testimony is minimal because the government
introduced into evidence the relevant CPT provisions, and these
provisions make clear that Poulin could not properly bill under
code 99213 for patients who received only chemotherapy drugs or
injections administered by nurses. To bill for a Level 3 office
visit, the CPT requires at least two of three components: (a)
“An expanded problem focused history”; (b) “An expanded problem
focused examination”; or (c) “Medical decision making of low
complexity.” A visit of this type, the CPT notes, “typically”
16
requires that the physician spend “15 minutes face-to-face time
with the patient and/or family.” Only the description of a
Level 1 office visit indicates that the presence of a physician
may not be required. Even allowing the possibility that a Level
3 visit may occur without a doctor’s presence, a reasonable
juror could not conclude, based on the plain text of these
provisions, that an expanded, problem-focused history or
examination occurred during visits where nurses merely
administered drugs pursuant to instructions Poulin provided as a
result of prior office visits.
Moreover, in billing for Level 3 visits, Poulin applied
Modifier 25. This modifier, according to the CPT, signifies
that “a significant, separately identifiable [evaluation and
management] service” was provided on the same day as another
billed procedure or service. By using Modifier 25, Poulin thus
indicated that a distinct service was being provided beyond the
injection or administration of chemotherapy, for which he also
billed. No “significant, separately identifiable” service can
be found, however, where a patient merely receives prescribed
drugs and never meets with or is examined by the physician. The
application of these provisions in relation to the facts of this
case is clear. Accordingly, we are satisfied that the testimony
regarding the meaning of the 99213 code, even if erroneously
admitted, did not substantially sway the jurors’ judgment.
17
Likewise, we reject Poulin’s assertion that Agent
Hastings’s testimony caused harm because it implied that a
physician could not correct errors in patient files after
receiving a subpoena. The district court instructed the jury
that Poulin could not be convicted for obstructing an
investigation if he altered records “to accurately reflect” what
had occurred. Further, even if Agent Hastings’s statement had
the potential to influence the jury in a close case, we may say
with fair assurance that this did not occur here because the
changes Poulin made or directed to be made to patient records—
including falsifying nurses’ notes—are inconsistent with the
mere correction or clarification of records.
B.
Poulin next contends that witnesses provided improper
hearsay testimony when they recounted statements made by his
former employees about refusing to alter patient records.
Federal Rule of Evidence 801 defines hearsay as a statement that
is not made while the declarant is testifying at the current
trial or hearing and that is offered to prove the truth of the
matter asserted. Fed. R. Evid. 801(c). But it excludes any
statement “offered against a party” that was made “by the
party’s agent or servant concerning a matter within the scope of
the agency or employment” and was “made during the existence of
18
the relationship.” Fed. R. Evid. 801(d)(2)(D). This exclusion
applies whenever an employee makes a statement “about a matter
within the scope of her employment,” even if she is not
authorized to speak on the matter. United States v. Portsmouth
Paving Corp., 694 F.2d 312, 321 (4th Cir. 1982).
Poulin does not dispute that the nurses and medical
assistants who refused to change patient records at his
direction were his employees at the time they made the out-of-
court statements. Nevertheless, he argues that the exclusion
does not apply because an employee does not act within the scope
of her employment when she refuses to perform a task assigned by
her employer and labels this task illegal. This misconstrues
the relevant inquiry. The concern of Rule 801(d)(2)(D) is not
whether the employee was carrying out the employer’s wishes or
whether the employee’s statement was authorized. Rather, the
court must determine whether the subject matter and
circumstances of the out-of-court statement demonstrate that it
was about a matter within the scope of the employment. Here,
the employment duties of the employees who refused to alter
patient files included maintaining the contents of these files,
and they made the statements to Poulin and other employees.
Accordingly, the statements concerned a matter within the scope
of the employment relationship. See United States v. Lauersen,
348 F.3d 329, 340 (2d Cir. 2003) (determining that a nurse’s
19
statement that patient files were destroyed concerned a matter
within the scope of her employment relationship because nurses
in the defendant’s office “were responsible for helping maintain
patient files”).
C.
Poulin also charges that many of these contested statements
were inadmissible on the ground that they stated legal opinions.
Generally, a witness may not give “opinion testimony that states
a legal standard or draws a legal conclusion by applying law to
the facts.” United States v. McIver, 470 F.3d 550, 562 (4th
Cir. 2006). This rule is grounded in the principle that only
testimony that will assist the jury is admissible, and testimony
that provides “no information other than the witness’s view of
how the verdict should read” is unhelpful to jurors. United
States v. Offill, No. 10-4490, slip op. at 8 (4th Cir. Dec. 6,
2011) (quoting Weinstein’s Federal Evidence § 704.04[2][a] (2d
ed. 2003)) (internal quotation marks omitted). To determine
whether a witness has stated a legal opinion, a court should
consider whether the witness has used terms that have a
specialized meaning in the law or has responded to a question
that tracks the language of the legal principle at issue. See
United States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002).
20
Poulin asserts that the district court abused its
discretion by admitting legal-opinion testimony when it
permitted Poulin’s former employees to testify that they refused
to alter patient files because they believed doing so was
illegal. Although a statement that conduct is illegal typically
represents a legal conclusion, here, the district court
instructed the jury that it allowed such testimony only so that
the jurors would “understand why [actors] did or said certain
things.” This testimony, therefore, did not simply tell the
jurors what result to reach; instead, it helped them to
understand the pertinent facts and was relevant to the issue of
whether Poulin had the requisite intent to obstruct an
investigation. Furthermore, the district court did not abdicate
its responsibility to instruct the jury on the relevant legal
standard, and it properly instructed the jurors on the need to
find that the defendant intended to impede, obstruct, or
influence an investigation to convict. 3
Finding no reversible error, we reject Poulin’s contention
that he is entitled to a new trial on the basis of an erroneous
evidentiary ruling.
3
As discussed in Part II.A, supra, any error in admitting
the testimony of Stewart, Johnson, Foltz, or Agent Hastings was
harmless.
21
III.
Poulin asserts that the prosecutor committed reversible
misconduct during closing arguments. He challenges two
statements made during the prosecutor’s rebuttal to defense
counsel’s closing argument. First, he argues the prosecutor’s
statement to the jury that Sherry Fann’s “immunity agreement is
your guarantee that she’s telling the truth” constitutes
improper vouching. Second, the prosecutor repeatedly described
defense counsel’s arguments during its closing as “red
herrings,” which Poulin contends impugned the integrity of
defense counsel.
Whether a statement made in closing arguments has
unconstitutionally tainted the outcome of the case is a question
of law, which we review de novo. 4 United States v. Collins, 415
F.3d 304, 307 (4th Cir. 2005). Improper remarks during the
government’s closing arguments violate a defendant’s due-process
rights so as to warrant reversal only if the remarks “so
prejudiced the defendant’s substantial rights that the defendant
was denied a fair trial.” United States v. Wilson, 624 F.3d
640, 656 (4th Cir. 2010). Therefore, to obtain a new trial,
4
The government argues that the statement regarding Sherry
Fann’s truthfulness should be reviewed for plain error because
defense counsel failed to enter a contemporaneous objection.
Because we find that the statement did not cause prejudice, it
does not constitute reversible error under either standard.
22
Poulin must demonstrate both that a statement was improper and
that it caused prejudice. United States v. Smith, 441 F.3d 254,
264 (4th Cir. 2006). Four factors are relevant to our
evaluation of prejudice: “(1) the degree to which the comments
could have misled the jury; (2) whether the comments were
isolated or extensive; (3) the strength of proof of guilt absent
the inappropriate comments; and (4) whether the comments were
deliberately made to divert the jury’s attention.” Collins, 415
F.3d at 309 (quoting United States v. Sanchez, 118 F.3d 192, 198
(4th Cir. 1997)) (internal quotation marks omitted).
As to the first inquiry, the government’s statement that
Sherry Fann’s immunity agreement “guarantee[d]” her
truthfulness, at minimum, borders on improper vouching.
Certainly, it is permissible for the government to argue that a
witness’s immunity or cooperation agreement provides a strong
incentive for truthfulness. United States v. Sullivan, 455 F.3d
248, 259 (4th Cir. 2006). A prosecutor may not implicitly or
explicitly suggest, however, that the government “can monitor
and accurately verify the truthfulness of the witness’[s]
testimony.” Collins, 415 F.3d at 308 (quoting United States v.
Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990)) (internal quotation
marks omitted). Here, the prosecutor’s statement regarding
Sherry Fann suggested that the government could perfectly
enforce the immunity agreement and police against any and all
23
lies. At best, treating the immunity agreement as a “guarantee”
of truthfulness, rather than an incentive to provide truthful
testimony, verges on impropriety. 5
Nevertheless, we conclude that the remark resulted in no
prejudice. It was an isolated comment, so, in light of the
compelling evidence of Poulin’s guilt, it is highly unlikely the
remark misled the jury. Further, there is no indication that
the prosecutor intended to divert the jury’s attention. It
instead appears that the prosecutor was seeking to highlight the
incentive for truthfulness created by the immunity agreement,
which is permissible.
The government also must tread carefully to avoid improper
denigration of defense counsel in using the phrase “red herring”
during closing arguments. As the Eighth Circuit has noted, the
use of “red herring” may not be “combined with other statements
alluding to defense counsel and deceitful trial tactics.”
United States v. Shan Wei Yu, 484 F.3d 979, 986 (8th Cir. 2007).
5
The government urges that we should find this statement
proper because the statement was made during the trial in United
States v. Huff, 389 F. App’x 299 (4th Cir. 2010) (unpublished),
and, on appeal, we found the record in that case revealed no
improper vouching. Huff is of limited value, however, not only
because it is not binding precedent, but also because our
opinion does not expressly address the “guarantee” statement.
Instead, it states without elaboration that our review of the
prosecutor’s statements revealed no impermissible vouching. Id.
at 302. Accordingly, Huff does not dissuade us from expressing
our concerns in this case.
24
But the phrase is not improper if the prosecutor uses it only
“to argue that some of the issues raised by the defense were not
central to the ultimate finding of guilt.” Id. at 986–87. The
government here used the term in the latter, permissible sense.
The prosecutor did not attack “the institutional role of defense
attorneys.” United States v. Ollivierre, 378 F.3d 412, 421 (4th
Cir. 2004), vacated on other grounds by 543 U.S. 1112 (2005);
see also United States v. Vaccaro, 115 F.3d 1211, 1218 (5th Cir.
1997) (finding that a statement that defense lawyers as a class
seek to “muddle the issues” and “[t]ry[] to make [them] as fuzzy
as possible” was “clearly improper”). Rather, in referring to
certain defense arguments as “red herrings,” the prosecutor
explained why he believed these arguments were peripheral to the
central factual questions relevant to Poulin’s guilt.
In sum, we hold that Poulin was not deprived of due process
by reason of the prosecutor’s remarks.
IV.
Poulin also argues that we must reverse because the
government failed to disclose evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and the Jencks Act, 18 U.S.C.
§ 3500. The district court denied Poulin’s motion for a new
trial based on a Brady violation. We review this denial under
an abuse-of-discretion standard. Wilson, 624 F.3d at 660 &
25
n.24. We review the district court’s determination regarding
whether evidence must be disclosed pursuant to the Jencks Act
for clear error. United States v. Roseboro, 87 F.3d 642, 645
(4th Cir. 1996).
A.
Under the rule articulated in Brady, to comply with due
process, the government must “disclose ‘evidence favorable to an
accused upon request . . . where the evidence is material either
to guilt or to punishment.’” United States v. Caro, 597 F.3d
608, 619 (4th Cir. 2010) (omission in original) (quoting Brady,
373 U.S. at 87). To establish a Brady violation, a defendant
must show (1) the government failed, intentionally or
inadvertently, to disclose evidence in its possession; (2) the
evidence is favorable, meaning exculpatory or impeaching; and
(3) prejudice ensued because the evidence was material to the
defense. Wilson, 624 F.3d at 661. A defendant who “can only
speculate” as to the existence or content of undisclosed
evidence fails to satisfy this burden. Caro, 597 F.3d at 619.
The government consistently has represented that it
complied with its Brady and Jencks Act responsibilities, and the
district court, in denying Poulin’s motion for judgment of
acquittal and for a new trial, noted that there was no evidence
that the government withheld such material. We agree. Having
26
reviewed the record, we find that Poulin offers no more than
speculation that the government failed to disclose material,
exculpatory evidence. The only alleged Brady material that
Poulin identifies with specificity is the grand jury testimony
of Sharon Guglielmini, but, because Guglielmini testified for
the defense, we can identify no prejudice that may have resulted
from the government’s failure to disclose this material.
B.
The Jencks Act mandates that the government must disclose
any statement in its possession made by a government witness
that relates to the subject matter of the witness’s trial
testimony. 18 U.S.C. § 3500(b); see also Fed. R. Crim. P.
26.2(a). A “statement” for purposes of the Jencks Act need not
be “the witness’[s] actual words,” but “it must in some way have
been adopted or approved by the witness.” Roseboro, 87 F.3d at
645. A statement relates to the subject matter of trial
testimony if it “relate[s] generally to the events and
activities” to which the witness testified. United States v.
Derrick, 507 F.2d 868, 871 (4th Cir. 1974) (quoting United
States v. O’Brien, 444 F.2d 1082, 1086 (7th Cir. 1971))
(internal quotation marks omitted).
We find that the district court did not clearly err in
determining that the government complied with its Jencks Act
27
obligations. Poulin insists the government failed to disclose
prior statements by Agent Hastings, but he has presented no
evidence supporting the existence of such statements, which the
government denies. The government acknowledges that it did not
disclose the grand jury testimony of FBI Analyst Zoubul to the
defense. This testimony constitutes a “statement” under the
Act, see § 3500(e)(3), and the district court followed the
proper procedure in conducting an in camera review of this
testimony before determining that it was not Jencks material
because it did not relate to the subject matter of Zoubul’s
trial testimony, see Roseboro, 87 F.3d at 645–46. Based on an
independent review of the grand jury testimony, we conclude that
this determination was not clearly erroneous. The district
court correctly determined that the grand jury testimony related
exclusively to counts of the indictment about which Zoubul did
not testify at trial.
We therefore find no merit in Poulin’s contention that he
is entitled to a new trial based on the government’s failure to
disclose evidence.
V.
Poulin raises two additional challenges to his conviction,
both of which require only brief discussion. First, Poulin
argues the district court erred in denying numerous jury
28
instructions that he proposed. We review the district court’s
“decision to give or not to give a jury instruction . . . for an
abuse of discretion.” United States v. Allen, 491 F.3d 178,
186–87 (4th Cir. 2007) (quoting United States v. Moye, 454 F.3d
390, 397–98 (4th Cir. 2006)) (internal quotation marks omitted).
Legal questions, including whether the district court properly
instructed the jury on the statutory elements of an offense, we
review de novo. Id. at 187. We will reverse because of the
district court’s refusal to provide a requested instruction only
if (1) the instruction was correct, (2) it addressed an issue
that was not otherwise substantially covered by the court’s
instructions, and (3) the “failure to give the requested
instruction seriously impaired the defendant’s ability to
conduct his defense.” United States v. Lewis, 53 F.3d 29, 32
(4th Cir. 1995) (quoting United States v. Camejo, 929 F.2d 610,
614 (11th Cir. 1991)) (internal quotation marks omitted).
Having reviewed the district court’s instructions, we find
they correctly state the governing law. The district court
properly instructed the jury on the meaning of “materiality,”
which is well-established by precedent. See, e.g., Neder v.
United States, 527 U.S. 1, 16 (1999); Kungys v. United States,
485 U.S. 759, 770 (1988). Accordingly, it did not abuse its
discretion in rejecting Poulin’s proposed instruction on this
issue. The district court also provided correct instructions
29
regarding the necessary mens rea to support the charged offenses
and the jury’s responsibility to determine facts and evaluate
credibility. These rendered superfluous the remaining
instructions that Poulin sought.
Second, we reject Poulin’s challenge to the sufficiency of
the evidence supporting his conviction. We review such a
challenge de novo. United States v. Kelly, 510 F.3d 433, 440
(4th Cir. 2007). We review the record in the light most
favorable to the government in determining whether there is
substantial evidence to support the conviction. United States
v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011).
Circumstantial as well as direct evidence is considered, and the
government is allowed “the benefit of all reasonable inferences
from the facts proven to those sought to be established.”
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
The conviction may be reversed only if no “rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Tran Trong Cuong, 18 F.3d
1132, 1140–41 (4th Cir. 1994) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)) (internal quotation marks omitted). Based
on our careful review of the record, we conclude for the reasons
stated in the district court’s well-reasoned opinion denying
Poulin’s Rule 29 motion that ample evidence—including both
30
witness testimony and voluminous documentary evidence—supports
Poulin’s conviction for each count.
VI.
Poulin next challenges his sentence on the ground that the
district court erred in applying an enhancement for his
leadership role in criminal activity under U.S.S.G. § 3B1.1(c).
“A district court’s findings regarding offense enhancement are
factual in nature and are reviewed only for clear error.”
United States v. Carter, 300 F.3d 415, 426 (4th Cir. 2002).
The Sentencing Guidelines direct a sentencing court to
increase a defendant’s offense level by two levels if the
defendant “was an organizer, leader, manager, or supervisor” of
criminal activity involving “one or more other participants.”
U.S.S.G. § 3B1.1(c) & cmt. n.2. To be a “participant,” an
individual “need not have been convicted.” § 3B1.1 cmt. n.1.
Yet the individual must be “criminally responsible” for the
conduct, id., not an “innocent bystander[] used in the
furtherance of the illegal activity,” United States v. Harvey,
532 F.3d 326, 338 (4th Cir. 2008).
The district court rejected Poulin’s argument that all
other alleged participants in his crimes were not criminally
responsible because they lacked the requisite intent. The
district court instead concluded that the government established
31
by a preponderance of the evidence Sherry Fann’s criminal
responsibility for altering records with intent to obstruct an
investigation. The criminal nature of Fann’s conduct—which
included fabricating nurse’s notes and forging signatures—was
plain, and Fann participated in the conduct even after others
objected that they believed it was illegal. These facts make
clear that Fann was not a mere “innocent bystander” swept up in
Poulin’s criminal activity. Accordingly, the district court’s
conclusion was not clearly erroneous.
VII.
Finally, Poulin presses several arguments in challenging
the district court’s order imposing forfeiture in the amount of
$1,326,852.70. Poulin argues he was not afforded an opportunity
for jury resolution of the forfeiture claim. He also maintains
that under the forfeiture statute applicable to health care
offenses, he is entitled to a set-off for the amount he would
have received had he billed properly for services actually
rendered, so the district court erred in ordering forfeiture of
the entire amount he received through fraudulent billing.
Poulin finally argues that the government failed to establish
the statutory prerequisites for forfeiture of substitute assets.
We find each argument to be without merit.
32
In an appeal from criminal forfeiture proceedings, we
review the district court’s legal conclusions de novo and its
findings of fact for clear error. United States v. Martin, 662
F.3d 301, 306 (4th Cir. 2011). We first consider Poulin’s
argument that he was improperly denied a jury determination of
the forfeiture claim. Federal Rule of Criminal Procedure 32.2
governs criminal forfeiture. Under the version of Rule 32.2 in
place at the time of Poulin’s trial, 6 the jury determines matters
regarding forfeiture only upon a party’s request. 7 See Fed. R.
Crim. P. 32.2(b)(4) (2009). Therefore, a defendant who failed
to make such a request before the jurors were excused waived his
right to have the jury resolve these matters. United States v.
Davis, 177 F. Supp. 2d 470, 483 (E.D. Va. 2001). Poulin did not
6
We note that there is no constitutional right to a jury
determination of forfeiture matters. Libretti v. United States,
516 U.S. 29, 49 (1995). The relevant inquiry, then, is whether
the district court complied with the applicable procedural rule.
7
On December 1, 2009—after the completion of the jury trial
on November 17, 2009, and before the hearing on forfeiture on
January 11, 2010, at which Poulin first expressly requested a
jury determination—Rule 32.2 underwent material changes with
respect to requests for a jury determination of forfeiture. The
post-December 1 Rule places the burden on the district court to
determine before the jury begins deliberations whether either
party requests a jury determination. See Fed. R. Crim. P.
32.2(b)(5)(A) (2010). A new procedural rule applies to pending
procedures only if feasible. 28 U.S.C. § 2074(a). It would not
have been feasible for the district court to comply with the
later version of Rule 32.2 in this respect because, by the time
it became effective, the jury had completed deliberations and
had been excused.
33
request a jury determination of forfeiture at the time of trial.
After the jury returned its verdict, defense counsel stated that
the court needed to address “the remainder of the indictment.”
But, immediately after making this statement, defense counsel
informed the district court that there was “[n]othing more” that
had to be addressed before the court excused the jury. By not
requesting a jury determination until a subsequent proceeding,
long after the jury was excused, Poulin waived this right.
We also conclude that the district court did not err in
ordering forfeiture of the entire amount Poulin received through
fraudulent billing without applying a set-off for the amount he
would have received had he billed properly for services actually
rendered. 8 A court sentencing an individual convicted of a
health care offense must order the forfeiture of the “gross
8
Poulin suggests he did not receive fair notice of
forfeiture because the government did not disclose its theory of
forfeiture or the amount it would seek. The indictment included
a forfeiture allegation, however, as required under both the
pre- and post-December 1, 2009, versions of Rule 32.2. Fed. R.
Crim. P. 32.2(a) (2010); Fed. R. Crim. P. 32.2(a) (2009). The
current version of the rule makes clear that the indictment need
not specify the amount of forfeiture, while the rule in force
prior to December 2009 was silent on this issue. In any event,
the indictment provided that the government intended to seek
forfeiture of “the gross proceeds” of the alleged health care
fraud, amounting to “[a] sum of money of at least $850,000.00.”
This, we conclude, was a sufficient allegation, notifying the
defendant of the government’s intent to seek forfeiture.
34
proceeds traceable to the commission of the offense.” 18 U.S.C.
§ 982(a)(7). In interpreting the continuing criminal enterprise
forfeiture provision in United States v. McHan, 101 F.3d 1027
(4th Cir. 1996), we explained that the term “proceeds”—as
opposed to “profits”—refers to “the total amount brought in”
through the criminal enterprise. Id. at 1041 (quoting Webster’s
Third New International Dictionary 1807 (1961)). Likewise, in
§ 982(a)(7), “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. See
United States v. Hui Chen, 350 F. App’x 520, 523–24 (2d Cir.
2009) (unpublished) (concluding that because the applicable
statute required the forfeiture of “gross proceeds,” “there is
no merit to defendant’s argument that she should be permitted to
subtract the market value of the ‘services’ she provided”).
Accordingly, the district court did not err in ordering
forfeiture of the total amount Poulin received through
fraudulent bills.
Finally, we find no error in the order requiring the
forfeiture of substitute property because, as the district court
held, see United States v. Poulin, 690 F. Supp. 2d 415, 431
(E.D. Va. 2010), the government established that the defendant
comingled legally and illegally obtained funds.
35
VIII.
For the foregoing reasons, we affirm.
AFFIRMED
36