United States v. Anderson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0147p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-6152
v.
,
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Defendant-Appellant. -
BILLIE FAYE ANDERSON,
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Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 07-00048-001—J. Ronnie Greer, District Judge.
Argued: April 29, 2010
Decided and Filed: May 19, 2010
*
Before: MOORE and GILMAN, Circuit Judges; RUSSELL, Chief District Judge.

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COUNSEL
ARGUED: Dan R. Smith, LAW OFFICE, Johnson City, Tennessee, for Appellant.
Debra A. Breneman, ASSISTANT UNITED STATES ATTORNEY, Knoxville,
Tennessee, for Appellee. ON BRIEF: Dan R. Smith, LAW OFFICE, Johnson City,
Tennessee, for Appellant. Debra A. Breneman, ASSISTANT UNITED STATES
ATTORNEY, Knoxville, Tennessee, for Appellee.
_________________

OPINION
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RONALD LEE GILMAN, Circuit Judge. Billie Anderson was indicted on one
count of Medicaid fraud. After the government presented its case in chief, Anderson
moved to dismiss the indictment as duplicitous and, alternatively, requested specific jury

*
The Honorable Thomas B. Russell, Chief United States District Judge for the Western District
of Kentucky, sitting by designation.

1
No. 08-6152 United States v. Anderson Page 2

instructions to cure the alleged duplicity. The district court denied the motion and
refused to charge the jury with the requested instructions. After the jury found Anderson
guilty, the court sentenced her to 24 months of imprisonment. She then filed a post-trial
motion to dismiss the indictment, alleging that it failed to state an offense, but this
motion was also denied by the court. Anderson now appeals the denial of both motions.
For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

The government’s charge revolved around the absence of a medical director at
Anderson HealthCare, Inc. (AHC), a long-term healthcare facility located in Gray,
Tennessee, between March 2002 and January 2003. Anderson was accused of
fraudulently concealing this absence, thereby allowing AHC to continue receiving
Medicaid payments to which it was not entitled.

AHC participated in Medicaid, a state-administered program through which
healthcare providers are reimbursed with federal funds for providing certain services to
the indigent. TennCare, a division of the Tennessee Department of Health, is
responsible for processing eligible claims for services provided by healthcare facilities
in Tennessee and paying reimbursements with a combination of state and federal funds.

A facility’s ongoing participation in Medicaid is conditioned on its compliance
with various federal, state, and local regulations, 42 C.F.R. § 483.75(b), including the
requirement that a long-term healthcare facility “designate a physician to serve as
medical director,” 42 C.F.R. § 483.75(i)(1). A medical director is responsible for
coordinating medical care within the facility and implementing resident-care policies.
Id. § 483.75(i)(2).

At all relevant times, Billie Anderson was an owner and the administrator of
AHC. In these positions, Anderson hired and fired AHC employees, made all of the
financial decisions, and was responsible for paying the medical director.
No. 08-6152 United States v. Anderson Page 3

Glenna Taylor, a registered nurse who worked at AHC from 1981 until either
2001 or 2002, testified that for the entire time she was employed there, the facility had
a medical director. For the last 10 years of Taylor’s employment, Dr. Daniel David
served in that position. Dr. David was a faculty member at East Tennessee State
University (ETSU), and the ETSU physicians group had a contract with AHC, providing
that Dr. David would be the facility’s medical director. But on January 15, 2002, ETSU
sent a letter to Anderson stating that its physicians group intended to terminate the
contract with AHC effective March 15, 2002.

In September 2002, the Tennessee Department of Health conducted its annual
survey of AHC. Annual surveys are designed to determine a facility’s compliance with
federal and state regulations regarding patient care. During the survey, an employee at
AHC was given a Disclosure of Ownership and Control Interest Statement Form, which
was signed by Anderson and given to the state team by the end of the survey. One of the
questions on the form asked: “Has there been a change in Administrator, Director of
Nursing or Medical Director within the last year?” The form was checked “No” in
response to this question and was dated September 19, 2002. Above the signature line
was a bolded statement warning that the making of a false statement on the form could
result in prosecution under federal or state laws, and that “knowingly and willfully
failing to fully and accurately disclose the information requested may result in denial of
a request to participate or[,] where the entity already participates, a termination of its
agreement or contract with the state agency or the Secretary [of Health and Human
Services].”

AHC’s September 2002 survey revealed numerous “immediate jeopardies,”
meaning that there were serious and immediate threats to the residents’ safety and health.
The Tennessee Department of Health therefore conducted an extended survey, also in
September 2002, to follow-up on the immediate jeopardies. As part of this more detailed
survey, the Department prepared a list of items it would need from AHC, including the
medical director’s license to practice medicine, the medical-director contract, and all
other contracts that the facility had in place. The survey team was initially told that the
No. 08-6152 United States v. Anderson Page 4

medical director was Dr. David, but later was told that Dr. Frank Johnson was the
medical director. On September 19, 2002, AHC could not produce the medical license
for either physician. One day later, however, AHC faxed the survey team a copy of Dr.
Johnson’s license.

Rebecca Riddle became the office manager at AHC in either December 2001 or
January 2002. She recalled overhearing a heated conversation between Anderson and
Dr. David in January 2002 about the doctor’s resignation. Riddle testified that Anderson
thus knew that Dr. David was leaving as the medical director. Sometime later, Riddle
typed up a proposed medical-director contract for Dr. Johnson, which she then sent to
him. Riddle was aware that Dr. Johnson had turned down the contract because he sent
the contract back in the mail unsigned and “with a sticky note on it.” She further
testified that Anderson did not hire anyone else as medial director after Dr. Johnson
turned down the job, and that AHC did not have a medical director during the September
2002 surveys.

Riddle told Anderson during the extended survey that the Tennessee Department
of Health wanted to see the medical-director contract. Anderson, according to Riddle,
said “[t]hey’ll close me down” when Riddle pointed out that the facility did not have a
medical director. This prompted Anderson to have Riddle retrieve Dr. Johnson’s
contract that he had sent back unsigned, to say “[l]et’s try this,” and to give Riddle the
unexecuted contract for the latter to hand the survey team. When a member of the
survey team told another AHC staff member that the team needed a signed version,
Anderson took the contract back, signed it herself on behalf of AHC, and told Riddle to
sign Dr. Johnson’s name, which Riddle did. Dr. Johnson had not authorized Riddle to
sign for him, and Riddle eventually told state investigators in February of 2003 about
this incident.

Following the extended survey, TennCare notified Anderson that, based on the
deficiencies found during the surveys, it would recommend that her Medicaid provider
agreement be terminated. Because AHC had furnished a medical license and a signed
medical-director contract for Dr. Johnson, it was not cited for the absence of a medical
No. 08-6152 United States v. Anderson Page 5

director. Anderson subsequently submitted a plan of correction, which specifically
mentioned the involvement of the medical director in implementing changes. She was
thereafter notified that as of October 25, 2002, AHC was in compliance with the relevant
regulations, so its contract would not be terminated.

In response to the extended survey, Anderson hired nursing consultant Debra
Verna in late fall or early winter 2002 to help keep AHC in compliance with federal and
state regulations. Verna met Dr. Johnson while working at AHC and said she
understood that he was the medical director. Dr. Johnson immediately stated that he was
not the medical director, that Verna needed to inform Anderson of that, and that he had
not signed any contract. When Verna informed Anderson the next day about this
conversation, Anderson stated that she did not know why Dr. Johnson would say that,
causing Verna to suggest that Anderson follow up with him. After Verna stopped
working at AHC in approximately January 2003, she filed an anonymous complaint with
the Tennessee Department of Health regarding the facility’s lack of a medical director.

Dr. Robert Chapman Lee entered into a written contract with AHC on January
8, 2003 to become its medical director, and he began his employment on that date.
Because “there were things going on that [he] didn’t feel comforable with,” however, Dr.
Lee sent Anderson a certified letter on February 1, 2003 notifying her that he was
resigning as the medical director.

In response to complaints about AHC, the Tennessee Department of Health
began an investigation in February 2003 to determine whether there was a medical
director at the facility. The Board of Nursing Home Administrators suspended
Anderson’s administrator’s license in March 2003 because it found that “from on or
around March 16, 2002 to on or around January 7, 2003, [Anderson] operated Anderson
HealthCare, Inc. without a medical director.” Before this investigation, neither federal
nor state officials knew that AHC was without a medical director during the period of
time in question. At trial, the prosecution presented proof that TennCare had paid AHC
over $1 million as a result of reimbursement claims filed and signed by Anderson each
month from July 2002 through January 2003.
No. 08-6152 United States v. Anderson Page 6

B. Procedural history

Anderson was originally indicted in June 2007 on eight counts of Medicaid fraud.
In August 2007, the government moved to dismiss all but one count. The remaining
count, brought pursuant to 42 U.S.C. § 1320a-7b(a)(3), read as follows:

[I]n or about March 2002 until in or about January 2003, in the Eastern
District of Tennessee, BILLIE FAYE ANDERSON, having knowledge
of an event that affected her continued right to receive payments from a
federal health care program, that is, Medicaid, that event being the
absence of a medical director at Anderson HealthCare, Inc., as required
by law, concealed and failed to disclose that event with the intent
fraudulently to secure Medicaid payments when none were authorized,
by submitting claims for payments to Medicaid knowing she was not
entitled to receive such payments.

Anderson’s jury trial began in September 2007 and lasted four days. At the close
of the government’s proof, Anderson moved to dismiss the indictment as duplicitous,
arguing that the government should have brought separate counts for each month during
the period that AHC allegedly did not have a medical director, but was still submitting
monthly reimbursement claims. She contended that without such a breakout, neither the
parties nor the court would be able to tell if the jury unanimously determined when the
offense occurred during the relevant months. Anderson thus claimed that her Sixth
Amendment right to a unanimous jury verdict would be violated by the incorporation of
ten specific offenses into one count. In response, the government argued that it was not
charging Anderson with submitting false claims—an offense that could have been
committed with each monthly request for reimbursement—but with the continuing
failure to disclose the absence of a medical director at AHC.

The district court noted that Anderson’s motion to dismiss should have been
raised pretrial. It nevertheless proceeded to the merits of the motion by ruling that the
indictment was not duplicitous because the filing of monthly reimbursement claims was
not an element of the offense. The court thus concluded that the indictment charged a
single violation that was continuous in nature.
No. 08-6152 United States v. Anderson Page 7

After the court denied Anderson’s motion, she requested the following jury
instruction to cure the alleged duplicity of the indictment:

Before you can find the defendant guilty of the charge in this indictment,
you must unanimously agree that the government has proved the
following three elements beyond a reasonable doubt, and those are the
three elements that the government and the court and the defendant have
agreed to, beyond a reasonable doubt for each of the 11 months charged
in the indictment; that if there is even one month within the period where
the government has failed to carry its burden as to these three elements,
then you must acquit the defendant.

Anderson later requested a second instruction regarding the “in or about” language in
the indictment:

The indictment charges that the crime commenced and ended “[i]n or
about” various dates. The government does not have to prove that the
crime began and ended on any exact date but the government must prove
that the crime continued from the starting date that you find until the
ending date that you find.

Finally, Anderson sought special findings of fact from the jury regarding the dates for
the commencement and termination of the crime. The government objected to each of
these proposals, and the district court ultimately refused to include them.

After less than two hours of deliberation, the jury found Anderson guilty.
Following several sentencing continuances and an unsuccessful motion for a new trial
filed by Anderson, the district court sentenced Anderson in September 2008 to 24
months of imprisonment, three years of supervised release, a $100 assessment, and a
$25,000 fine. She subsequently filed a post-trial motion to dismiss the indictment for
failure to state an offense pursuant to Rule 12(b)(3)(B) of the Federal Rules of Criminal
Procedure, which the district court denied. Anderson has timely appealed the district
court’s denial of her motions to dismiss the indictment as duplicitous and to dismiss the
indictment for failure to state an offense.
No. 08-6152 United States v. Anderson Page 8

II. ANALYSIS

A. Standard of review

We review de novo the sufficiency of an indictment. United States v. Ahmed,
472 F.3d 427, 431 (6th Cir. 2006). Similarly, we employ de novo review to determine
if an indictment is duplicitous. United States v. Kakos, 483 F.3d 441, 443 (6th Cir.
2007). But we review a district court’s denial of a requested jury instruction for abuse
of discretion. United States v. Gray, 521 F.3d 514, 540 (6th Cir. 2008). An abuse of
discretion will not be found if the jury instructions “as a whole . . . adequately informed
the jury of the relevant considerations and provided a basis in law for aiding the jury in
reaching its decision.” United States v. Frederick, 406 F.3d 754, 761 (6th Cir. 2005).

B. Failure to state an offense

Anderson first challenges the district court’s denial of her post-trial motion to
dismiss the indictment for failure to state an offense. A party may raise an allegation
that the indictment does not state an offense at any time, including post-trial or on
appeal. United States v. Gatewood, 173 F.3d 983, 986 (6th Cir. 1999) (allowing a
defendant to challenge the sufficiency of the indictment for the first time on appeal).
“[A]n indictment is sufficient if it, first, contains the elements of the offense charged and
fairly informs a defendant of the charge against which he must defend, and, second,
enables him to plead an acquittal or conviction in bar of future prosecutions for the same
offense.” Hamling v. United States, 418 U.S. 87, 117 (1974).

Anderson was charged under 42 U.S.C. § 1320a-7b(a)(3), which provides that

[w]hoever, . . . having knowledge of the occurrence of any event
affecting . . . his initial or continued right to any . . . benefit or payment
[under Medicaid], conceals or fails to disclose such event with an intent
fraudulently to secure such benefit or payment either in a greater amount
or quantity than is due or when no such benefit or payment is authorized,
. . . shall . . . be guilty of a felony.

Anderson’s indictment clearly tracked the language of the statute and thus contained the
elements of the offense. Specifically, it charged that (1) Anderson had knowledge of an
No. 08-6152 United States v. Anderson Page 9

event affecting her right to receive Medicaid payments, (2) she concealed the event, and
(3) in concealing the event, she acted knowingly and willfully with the intent to
fraudulently secure Medicaid payments. See United States v. Collis, 128 F.3d 313, 317
(6th Cir. 1997) (holding that an indictment was sufficient because “[t]he charged offense
fully tracks the relevant language of” the statute). Given these specific allegations,
Anderson was fairly informed of the charge against which she had to defend. This
satisfies the first prong of Hamling. (We recognize that both the statute and the
indictment refer to an individual’s right to receive Medicaid payments. Here, the
payments went to AHC, not to Anderson individually. But neither party has raised this
potential discrepancy, so we decline to address it.)

The indictment also included the relevant time period and the specific event that
triggered the charge against her—the absence of a medical director. Anderson would
accordingly be able to adequately plead an acquittal or conviction in bar of any future
prosecutions arising from the same offense. The second requirement of Hamling is thus
met. Indeed, Anderson does not dispute that the Hamling test is satisfied in the instant
case. She instead argues on appeal that the indictment is insufficient because there is
allegedly no statute or regulation that would put Anderson on notice that her facility’s
participation in Medicaid “would automatically disintegrate or immediately terminate
with the instance of the loss of the Medical Director.”

But this argument misses the point. Anderson is not so much contending that the
indictment fails to state an offense, but rather that she could not be guilty under the
statute because the absence of a medical director is not an event automatically
terminating her facility’s right to receive Medicaid payments. This is an issue that
Anderson was free to argue at trial; i.e., that one element of the statute was not satisfied
because the absence of a medical director purportedly does not affect AHC’s right to
Medicaid payments under federal and state rules. But the government was also free to
include in its indictment the charge that the absence of a medical director does affect the
continuing right to receive Medicaid payments. The indictment need only set forth
elements that, if proven, constitute a violation of the relevant statute. See Hamling, 418
No. 08-6152 United States v. Anderson Page 10

U.S. at 117 (stating that the indictment may track the language of the statute, provided
that the statute itself clearly “set[s] forth all the elements necessary to constitute the
[offense] intended to be punished” (citation omitted)).

In any event, the right of a long-term healthcare facility to participate in
Medicaid payments is in fact conditioned on the presence of a medical director. See 42
C.F.R. § 483.75(b) (“The facility must operate and provide services in compliance with
all applicable Federal, State, and local laws, regulations, and codes . . . .”); § 483.75(i)(1)
(“The facility must designate a physician to serve as medical director.”). As the district
court correctly noted, if a facility loses its medical director, then this event would affect
the facility’s right to Medicaid payments because it would no longer be operating in
accordance with federal regulations. And Anderson conceded that she was aware that
her facility needed a medical director. Her defense at trial, which the jury obviously
disbelieved, was that Dr. William Bailey, her personal physician, had agreed to serve as
the medical director without compensation.

Moreover, the statute under which Anderson was charged does not require that
an individual conceal an event that would automatically terminate her facility’s
Medicaid payments; the concealment of an event that would adversely affect the
facility’s right to continued payments is sufficient to violate the statute. See 42 U.S.C.
§ 1320a-7b(a). In sum, the indictment satisfies both of Hamling’s requirements. The
district court thus did not err in denying Anderson’s post-trial motion to dismiss the
indictment for failure to state an offense.

Anderson’s appellate brief appears to mix her arguments about the indictment’s
alleged failure to state an offense with arguments about whether the statute or the
indictment violates her right to due process for lack of fair notice. She contends, for
example, that the indictment “fails to state an offense for which Mrs. Anderson or a
person of ordinary intelligence would have fair notice that the conduct is a crime.” And
at oral argument, her counsel contended that at most a person in Anderson’s position
would have known that she would face civil penalties for failing to have a medical
director, but could not have known that such a failure implicated criminal penalties.
No. 08-6152 United States v. Anderson Page 11

“[O]ne of the basic tenets of due process jurisprudence is that citizens be afforded
fair notice of precisely what conduct is prohibited.” United States v. Blaszak, 349 F.3d
881, 885 (6th Cir. 2003). A citizen may be presumed to know the content of the law so
long as the relevant statute is not “so technical or obscure that it threatens to ensnare
individuals engaged in apparently innocent conduct.” United States v. Baker, 197 F.3d
211, 219 (6th Cir. 1999).

We conclude that 42 U.S.C. § 1320a-7b(a) is not so technical or obscure that an
individual in the long-term healthcare business would be oblivious to its prohibitions and
criminal penalties, particularly because the statute requires the individual to act with the
intent to fraudulently secure payments. See Vill. of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (noting that “the Court has recognized
that a scienter requirement may mitigate a law’s vagueness, especially with respect to
the adequacy of notice to the complainant that his conduct is proscribed”). The fact that
the government was required to establish that Anderson acted “with an intent
fraudulently to secure” Medicaid payments significantly weakens any argument that the
statute “threatens to ensnare individuals engaged in apparently innocent conduct.” See
Baker, 197 F.3d at 219.

Moreover, even if the statute were considered highly technical and did not have
a scienter requirement, someone in Anderson’s position would be hard-pressed to claim
that she was not on notice that she was subject to stringent and complex federal and state
regulations. In Baker, for example, this court held that the defendant did not lack fair
notice of a statute that prohibited possession of a firearm by a person subject to a
domestic-protection order that explicitly stated in bold letters that the defendant could
not lawfully possess a firearm. Id. at 219-20. The court reasoned that the fact that the
defendant “had been made subject to a domestic violence protection order provided him
with notice that his conduct was subject to increased government scrutiny.” Id. This led
the court to observe that it was “not reasonable for someone in his position to expect to
possess dangerous weapons free from extensive regulation.” Id. Analogous to the
defendant in Baker, Anderson could not reasonably expect to operate a long-term
No. 08-6152 United States v. Anderson Page 12

healthcare facility that receives large amounts of federal and state money without being
closely regulated. Equally important, the annual survey form that Anderson signed in
September 2002 specifically stated, in bold type above her signature, that a false
statement could result in prosecution under federal or state laws.

The fact that the statute does not specifically enumerate the events that could
affect a healthcare facility’s right to continue receiving Medicaid payments does not
change this conclusion. Although the average citizen would not know what events affect
this right, we can impute particularized knowledge to those affected by the statute where
the statute regulates “a particular industry or subgroup” and not the public at large. See
United States v. Caseer, 399 F.3d 828, 837-38 (6th Cir. 2005) (recognizing this
principle, but contrasting the situation where the statute regulated the public at large, and
concluding that “the term ‘cathinone’ is sufficiently obscure that persons of ordinary
intelligence . . . probably would not discern that possession of [a stimulant] containing
cathinone . . . constitutes possession of a controlled substance”). Anderson can therefore
be held to have notice of the events that would affect a healthcare facility’s right to
continue receiving Medicaid payments as part of the industry regulated by various
healthcare statutes and accompanying regulations.

At oral argument, Anderson’s counsel contended that because federal regulations
separately list the positions for which a long-term healthcare facility must notify the state
of any changes (which do not include the medical director), see 42 C.F.R.
§ 483.75(p)(2), an individual would not be on notice that she needed to notify the state
of the absence of a medical director. This argument again misses the point. The statute
criminalizes the concealment of an event that affects a facility’s right to Medicaid
payments. And the regulations set out the requirements for participation in
Medicaid—in effect, the people and processes that must be in place for a facility to be
eligible for Medicaid funds. There is no need for a specific regulation requiring the
disclosure of a change in the medical director because the prohibition on concealing or
failing to disclose an event affecting the right to Medicaid payments comes from the
statute itself. Thus, to the extent that Anderson argues that 42 U.S.C. § 1320a-7b(a)
No. 08-6152 United States v. Anderson Page 13

violates due process by failing to give fair notice of what it prohibits, her argument is
without merit.

C. Duplicity

Anderson also appeals the district court’s denial of her mid-trial motion to
dismiss the indictment as duplicitous and her proposed jury instructions to cure the
alleged duplicity. As a general rule, a defendant must move to dismiss an allegedly
duplicitous indictment before the trial begins. United States v. Adesida, 129 F.3d 846,
849 (6th Cir 1997). Where, however, the alleged error “concerns not only a technicality
(two offenses are charged in one count), but also raises issues involving substantive
rights (right to a unanimous jury verdict),” it may be raised mid-trial or on appeal for the
first time. Id. Anderson alleges that the indictment not only charged multiple offenses
within one count, but also violated her right to a unanimous jury verdict under the Sixth
Amendment because the jury might not have been unanimous as to Anderson’s alleged
intent to defraud with regard to each monthly statement sent out by AHC during the
period in question. Thus, her failure to raise duplicity as an issue before her trial began
does not bar our review of this claim.

“A duplicitous indictment charges separate offenses within a single count. The
overall vice of duplicity is that the jury cannot in a general verdict render its finding on
each offense, making it difficult to determine whether a conviction rests on only one of
the offenses or on both.” United States v. Washington, 127 F.3d 510, 513 (6th Cir. 1997)
(citations and internal quotation marks omitted). Anderson claims that her indictment
was duplicitous because “it was impossible to tell from the Indictment if Mrs. Anderson
was charged and convicted of a continuing offense that continued during the entire time
frame charged in the Indictment or if she was charged and convicted of one or more
single offenses of submitting unauthorized claims at some point or points within the time
frame.” The government responds by contending that the indictment “charges a single
offense: concealing and failing to disclose an event that affected the facility’s eligibility
to continue to receive Medicaid payments.”
No. 08-6152 United States v. Anderson Page 14

Anderson’s argument is without merit. The government did not contend that the
information provided in AHC’s monthly statements was false—i.e., that AHC did not
actually provide the services stated or that AHC sought too much in reimbursement
expenses. Even if the claims themselves were truthful on their face, Anderson was still
violating 42 U.S.C. § 1320a-7b(a) because AHC was not entitled to any payments during
the period of time that it lacked a medical director. The evidence regarding Anderson’s
submission of claims for Medicaid reimbursements was simply part of the government’s
proof of her intent to fraudulently secure Medicaid payments during the period of time
that she was concealing the absence of a medical director at AHC.

In sum, the indictment alleges an offense that was continuous in nature—from
March 2002 until January 2003—during which time Anderson concealed the absence
of a medical director. The continuous nature of the scheme prevents the indictment from
being duplicitous. At oral argument, Anderson’s counsel contended that there was
evidence that, during some of those months, AHC did have a medical director, so the
jury could not have unanimously found that she was guilty for the entire period charged
in the indictment. Such a contention, however, is a challenge to the sufficiency of the
evidence, not to the nature of the indictment. Because of our conclusion that the
indictment is not duplicitous, the district court properly acted within its discretion by
denying the jury instructions that Anderson requested to cure the alleged duplicity.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district
court.