UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4298
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAMADA MAKARITA,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:12-cr-00223-LMB-1)
Submitted: October 21, 2013 Decided: June 26, 2014
Before TRAXLER, Chief Judge, and GREGORY and THACKER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Peter D. Greenspun, Jonathan Shapiro, Mikhail N. Lopez,
GREENSPUN SHAPIRO P.C., Fairfax, Virginia, for Appellant. Dana
J. Boente, Acting United States Attorney, Danya E. Atiyeh,
Special Assistant United States Attorney, Mazen Basrawi, Special
Assistant United States Attorney, Gene Rossi, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Hamada Makarita (“Appellant”) was convicted
after a jury trial of one count of conspiracy to illegally
dispense controlled substances, five counts of illegally
dispensing controlled substances, one count of health care
fraud, and one count of aggravated identity theft. He appeals,
raising three issues: (1) the district court should have granted
his motion for a new trial based on the Government’s alleged
Brady v. Maryland, 373 U.S. 83 (1963), violations; (2) the
evidence presented at trial was insufficient to convict him; and
(3) cumulative error deprived him of a fair trial. We have
reviewed the record and find no reversible error. Accordingly,
we affirm.
I.
Appellant, a dentist, owned and operated a dental
practice in Oakton, Virginia, called “Fixasmile,” specializing
in cosmetic dentistry. On May 24, 2012, Appellant was charged
in a 15-count indictment with one count of conspiring to
dispense controlled substances, in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (Count 1); 12 counts of dispensing
controlled substances, in violation of 21 U.S.C. § 841(a)(1)
(Counts 2-13); one count of health care fraud, in violation of
18 U.S.C. § 1347 (Count 14); and one count of aggravated
identity theft, in violation of 18 U.S.C. § 1028A (Count 15).
2
The indictment charged that from 2007 to 2012, Appellant
“distributed and dispensed thousands of dosages of scheduled
medication, including, but not limited to, Dilaudid, Percocet,
Vicodin, Fentanyl, Valium, Xanax, and other prescription pills,
to patients, employees, and girlfriends, all without a
legitimate dental purpose and beyond the bounds of a dental
practice.” J.A. 33. * Further, the indictment charged Appellant
with fraudulently billing the health care insurance provider,
AETNA, for dental services he provided to his family members by
billing these services under the name of another dentist.
Appellant’s jury trial began on November 5, 2012, and
on November 16, 2012, the jury returned guilty verdicts as to
Counts 1-3, 10, and 12-15. The jury found Appellant not guilty
on the remaining seven specific distribution counts. On April
12, 2013, Appellant was sentenced to 25 months imprisonment.
A.
At trial, the Government’s witnesses included, Karen
Derder, Appellant’s former office manager; Janet Williams,
Appellant’s current office manager; Janet Brumbaugh, Appellant’s
patient and former girlfriend; and Masooda Azad, Appellant’s
former dental assistant. The Government also presented expert
*
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3
testimony for each of the distribution counts from Dr. Lawrence
Singer. Below is a summary of the evidence presented to support
each count of conviction.
1.
Count One
Count 1 charged Appellant with conspiracy to illegally
dispense controlled substances by directing “employees to
pharmacies to pick up filled prescriptions written in the names
of employees and patients, and further instruct[ing] the
employees to illegally distribute the prescription medications
back to him for his personal use and further distribution.”
J.A. 35. Karen Derder, Appellant’s former office manager,
testified that on April 23, 2009, she filled a prescription from
Appellant for Fentanyl patches and witnessed him apply one of
the patches to his body at his dental office. Moreover, Ms.
Derder testified that she printed multiple prescriptions for
controlled substances from the office computer for Appellant’s
various family members, patients, and friends at the behest of
Appellant.
Masooda Azad, Appellant’s former dental assistant,
testified that on July 26, 2007, Appellant wrote a prescription
for Valium in her name and instructed her to pick up the
medication and return it to him so he could distribute it to
Reem Hammoud, his girlfriend. Ms. Azad also testified that on
4
January 24, 2008, Appellant wrote a prescription for Vicodin in
her name and instructed her to pick it up and return it to him
for his own personal use. According to Ms. Azad, she discovered
for the first time during the investigation of this case from a
Virginia Prescription Monitoring Program (“PMP”) report shown to
her by a federal agent that Appellant had written several other
prescriptions in her name which were filled at various
pharmacies. Ms. Azad testified when she called Appellant to ask
why federal agents were inquiring into her prescription history,
he instructed her to tell the federal agents that he had given
her some pain medication. Ms. Azad testified this confused her
because the only pain medicine Appellant had given her for her
own use had been topical medication for a mouth sore.
2.
Counts Two and Three
Counts 2 and 3 charged Appellant with illegally
distributing or dispensing controlled substances to Janet
Brumbaugh on November 13, 2007, and January 23, 2008,
respectively. Ms. Brumbaugh testified that she began seeing
Appellant for dental services in 2002, and her relationship with
him became romantic in 2007. According to Ms. Brumbaugh, after
their relationship turned romantic, she would call Appellant to
get prescriptions for Vicodin and Valium for recreational use,
and she would consume these controlled substances as well as
5
alcohol while on dates with Appellant. It was her understanding
that, in order to obtain the prescriptions, she had to “hang
out” with Appellant. J.A. 551. Ms. Brumbaugh testified that on
at least one of these dates she combined the Vicodin with
alcohol and blacked out. Either the next day or shortly
thereafter, Appellant sent her photographs that he had taken of
her while she was incapacitated, which depicted her nude except
for a jacket and a single boot, lying apparently unconscious on
his bed. The photograph was admitted into evidence. Ms.
Brumbaugh further testified that she was suffering from no
dental pain at the time and did not tell Appellant she was
suffering from any dental pain; the medications were solely for
recreational purposes, and Appellant was well aware that she was
not using the medications for a legitimate medical purpose.
Dr. Lawrence Singer, the Government’s expert,
testified that he reviewed Janet Brumbaugh’s patient file and in
2007, Ms. Brumbaugh had minor dental procedures performed that
would result in “mild discomfort” at most. J.A. 465. Further,
after reviewing Ms. Brumbaugh’s record from the Virginia PMP,
Dr. Singer testified that between 2007 and 2008 Appellant
prescribed Ms. Brumbaugh “several hundred pills total” in
prescriptions that “were maybe a couple dozen,” and Ms.
Brumbaugh’s patient record was devoid of any clinical notes to
support this treatment. J.A. 466. Specifically, Dr. Singer
6
testified that the Vicodin prescriptions Appellant wrote for Ms.
Brumbaugh on November 13, 2007, and January 23, 2008, were not
written within the bounds of dental practice for a legitimate
dental purpose because there were no records, notes, treatment,
or anything else in the patient’s records to indicate that this
treatment was required or even that Ms. Brumbaugh had any dental
services performed by Appellant.
3.
Count Ten
Count 10 charged Appellant with illegally distributing
or dispensing a controlled substance to Karen Derder on April
23, 2009. Ms. Derder testified Appellant wrote a prescription
for several boxes of Fentanyl patches in her name and asked her
to fill it for his own personal use. According to Ms. Derder,
Appellant hand wrote the prescription, and she dropped it off at
a pharmacy the night of April 22, 2009, and picked it up before
work the next morning. Ms. Derder testified that upon arriving
at work the morning of April 23, 2009, she gave the three boxes
of Fentanyl patches to Appellant and witnessed him apply one to
his body. Appellant himself corroborated Ms. Derder’s account.
Appellant testified, “I was hoping this was something I could
use as a treatment modality to use for any oral pain. That’s
why I used it on myself. I said, ‘I want to see if it helps my
back.’” J.A. 1091.
7
Ms. Derder not only worked for Appellant, but was also
his patient. The Government’s expert, Dr. Singer, reviewed Ms.
Derder patient file and record from the Virginia PMP. Dr.
Singer testified that between 2007 and 2012 Appellant wrote
prescriptions for Ms. Derder for what “[a]ll amounted to a few
hundred -- several hundred doses of narcotics.” J.A. 471.
Specifically, Dr. Singer testified that on April 23, 2009,
Appellant prescribed Ms. Derder Fentanyl patches, which are a
“slow-release formulation of Fentanyl” in a patch applied to the
skin. J.A. 473. According to Dr. Singer, this medicine is
outside the scope of dentistry or oral surgery and “is only
appropriate for a chronic pain patient who has cancer pain or .
. . something extremely debilitating and may be chronically
ill.” J.A. 474. Dr. Singer testified that the April 23, 2009
Fentanyl patch prescription Appellant wrote for Ms. Derder was
not written within the bounds of dental practice for a
legitimate dental purpose because there were no clinical notes
in her file that would support this treatment and because
Fentanyl has no role in dentistry as it “is a chronic pain
medication of the highest order.” J.A. 475.
8
4.
Counts Twelve and Thirteen
Counts 12 and 13 charged Appellant with illegally
distributing or dispensing a controlled substance to Masooda
Azad on July 26, 2007, and January 24, 2008, respectively. Ms.
Azad was not only Appellant’s dental assistant, she was also his
patient. Ms. Azad testified that on two separate occasions,
Appellant wrote prescriptions for controlled substances in her
name, and then asked her to go to a pharmacy, pick up the
medication, and bring it back to him -- once for Reem Hammoud,
Appellant’s girlfriend, and once for his own use. Ms. Azad
testified that the first time she complied, and brought a
prescription for Valium back to Appellant. However, she refused
to fill the second prescription, which was for Vicodin. Janet
Williams, Appellant’s current office manager, confirmed that the
January 2008 prescription for Vicodin was written in Appellant’s
handwriting.
Dr. Singer, the Government’s expert, again testified
that he reviewed Ms. Azad’s patient file and record from the
Virginia PMP. Dr. Singer testified that there were no clinical
notes to support Appellant’s prescription of Valium on July 26,
2007. Dr. Singer emphasized that Ms. Azad was not Appellant’s
patient until approximately a year after this prescription was
written. Dr. Singer also testified that there were no records
9
to support Appellant’s January 24, 2008 prescription of Vicodin
to Ms. Azad. Dr. Singer opined that these prescriptions were
not written within the bounds of dental practice for a
legitimate dental purpose “[b]ecause there’s no treatment,
there’s no records, and this is a scheduled substance that has a
high potential for abuse, so there’s no treatment or records to
support this or even that the patient was a patient of record at
that time.” J.A. 462-63.
5.
Counts Fourteen and Fifteen
Counts 14 and 15 charged Appellant with health care
fraud for billing AETNA, a health care insurance provider, for
services he provided to his family members and for aggravated
identity theft, respectively. A representative from AETNA,
Kathy Richer, testified that AETNA has an administrative
services contract with World Bank. According to Ms. Richer,
this means that World Bank pays their own employees’ claims, but
AETNA administers the contract or coverage policy and pays
claims according to the plan’s guidelines. In other words, an
employee’s insurance “claim is submitted by a provider, and
[AETNA] pay[s] the claim, but it’s actually World Banks’s money
that’s paying the claim.” J.A. 403. After reviewing the
medical insurance plan between World Bank and its employees and
the contract between World Bank and AETNA, Ms. Richer testified
10
that there is a specific exclusion in the documents “stating
that services cannot be rendered to any family member or person
related by blood or marriage” by a provider. J.A. 404; see also
J.A. 1266.
From 2007 to 2012, World Bank’s AETNA-administered
heath insurance plan provided dental insurance to Appellant’s
parents. Karen Derder, Appellant’s former office manager, and
Janet Williams, Appellant’s current office manager, both
testified that Appellant was aware of a provision in his
parent’s health insurance plan that excluded from reimbursement
procedures performed on a patient by a doctor or dentist who was
that patient’s family member. The two also testified that in
order to circumvent this provision, Appellant submitted his
requests for reimbursement for work done on his parents in the
name of Dr. Sameh Kassem, a dentist who had previously been
employed by the practice. Ms. Williams and Ms. Derder both
testified that when checks arrived from AETNA made out to Dr.
Kassem, Appellant would forge Dr. Kassem’s signature in order to
sign the check over to himself, and then deposit the check,
sometimes in his personal bank account and sometimes in the
business bank account. Dr. Kassem testified and confirmed that
the signatures on the checks were not his, that he had not
authorized Appellant to bill in his name or to sign checks on
his behalf, and that he had not performed any dental work on
11
Appellant’s parents. According to Ms. Richer, Appellant
received approximately $91,000 to which he was not entitled by
engaging in this particular billing practice.
B.
After trial, Appellant filed motions for acquittal and
for a new trial. These motions alleged the Government committed
a number of Brady v. Maryland, 373 U.S. 83 (1963), discovery
violations. Specifically, Appellant claimed the Government
failed to inform him that Karen Derder believed that in exchange
for her testimony in this case, Special Agent Parker, the
federal agent investigating this case, would protect her from
prosecution on unrelated charges for embezzlement in Culpeper
County, Virginia. Appellant further claimed the Government
failed to disclose the result of a negative drug test performed
by Pre-Trial Services on Appellant the day of his arrest.
Finally, Appellant argued the Government was required to
subpoena Ms. Derder’s bank records and provide them to him. The
district court held two post-trial evidentiary hearings before
ultimately denying Appellant’s motions.
Although the Government did not present any evidence
in response to Appellant’s latter two arguments, i.e., the
negative drug test and Ms. Derder’s bank records, it argued to
the district court that it had neither in its possession and,
therefore, the evidence could not be considered Brady evidence.
12
The Government argued that the drug test did not fall under the
purview of Brady because Appellant’s counsel had actual
knowledge of the negative result from Appellant himself and the
result of the test was not within the control of the Government.
The Government also argued that Ms. Derder’s bank records were
not subject to Brady because they were also not in its control.
Further, according to the Government, the bank records would
have been cumulative impeachment material.
With regard to the Culpeper investigation, Special
Agent Parker testified at the first post-trial hearing on March
15, 2013, that he had instructed Ms. Derder to cooperate and be
truthful with the Culpeper investigators in order to be
protected under her immunity agreement with the government. On
cross-examination, Special Agent Parker admitted that Ms. Derder
likely believed “that truthful equaled no prosecution.” J.A.
1431. However, Ms. Derder testified that she believed that her
federal immunity agreement in this case would not affect the
Culpeper investigation at all “[b]ecause the federal immunity
only applied to the trial of [Appellant]. It doesn’t apply to
any context outside of that.” J.A. 1506. Further, Detective
Maria Rodriguez, a detective for the Culpeper County Sheriff’s
Office and the detective who investigated the embezzlement
accusations against Ms. Derder, testified that the federal case
had no impact on her actions with regard to the investigation.
13
At the close of the second hearing, the district court
denied Appellant’s motions. With regard to Appellant’s motion
for a new trial, the district court stated,
the ultimate question about whether or not
to grant a new trial is has there been a
manifest injustice, has an innocent person
been wrongly convicted, and you don’t
lightly set aside a trial unless there are
some really significant problems such that
if you look at the entire record, not just
one little piece here and one little piece
there in isolation, if you look at the
entire record, does it suggest that there
was, in fact, so many defects that the case
itself has to be retried.
J.A. 1590. Ultimately, the district court concluded Appellant’s
alleged Brady violations did not meet this standard.
[M]ost of the issues that you have taken up
in my view have to do with credibility and
at most would have been cumulative of the
significant amount of evidence that the
. . . defense was able to present that would
undermine the credibility of not just Derder
but of the agent as well.
And, you know, again, [Appellant’s
counsel] put on very effective cross-
examination of all the [G]overnment’s
witnesses, and they all had [a] certain
amount of warts, but overall between the
documentary evidence that was at the trial
and the testimony of the witnesses, I think
there is no basis to grant the motion for a
new trial. So I’m denying the motion
. . . .
J.A. 1612.
The defendant now appeals to this Court.
14
II.
Appellant first argues the district court erred by
denying his motion for a new trial based on the Government’s
alleged Brady v. Maryland, 373 U.S. 83 (1963), violations. Rule
33 of the Federal Rules of Criminal Procedure provides, such a
motion may be granted “if the interest of justice so requires.”
Fed. R. Crim. P. 33(a). “We review the district court’s denial
of a motion for a new trial under an abuse of discretion
standard.” United States v. Bartko, 728 F.3d 327, 334 (4th Cir.
2013). “It is an abuse of discretion for the district court to
commit a legal error -- such as improperly determining whether
there was a Brady violation -- and that underlying legal
determination is reviewed de novo.” Id. at 338.
Brady held “that the suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87. To succeed on his Brady claim,
“the burden rest[s] on [Appellant] to show that the undisclosed
evidence was (1) favorable to him either because it is
exculpatory, or because it is impeaching; (2) material to the
defense, i.e., prejudice must have ensued; and (3) that the
prosecution had materials and failed to disclose them.” Bartko,
728 F.3d at 338 (internal quotation marks omitted).
15
Appellant argues the Government violated Brady when it
(1) failed to provide information about Karen Derder’s
understanding of her federal immunity agreement; (2) failed to
produce the result of Appellant’s negative drug test; and (3)
failed to provide bank records showing Ms. Derder’s health care
fraud.
A.
Federal Immunity Agreement
According to Appellant, the Government suppressed
favorable, material evidence as to Karen Derder’s understanding
of her federal immunity agreement. Appellant characterizes Ms.
Derder as a serial perpetrator of frauds and the Government’s
key witness against him. Appellant contends that at the time of
the trial, Ms. Derder was under strong suspicion by state
authorities in Culpeper, Virginia, for embezzlement from her
daughter’s basketball team fund. Appellant further asserts this
embezzlement occurred well after Ms. Derder reached her
cooperation agreement with the Government, which provided her
immunity from federal prosecution for her drug and fraud crimes.
According to Appellant, as developed in the post-trial hearings,
it was made clear to Ms. Derder by Special Agent Parker that as
long as she cooperated with the Culpeper authorities, she was
protected from prosecution from the potential charges in
Culpeper. Appellant argues that this understanding was withheld
16
from him, and he was not permitted to pursue questions relating
to it on cross examination.
The Government disputes Appellant’s allegations
claiming they did not suppress the evidence because it did not
exist. According to the Government, Ms. Derder had no belief
that she would be protected from prosecution by the Culpeper
authorities. The Government further argues that even if Ms.
Derder possessed some undisclosed perceived benefit, it did not
violate Brady because the evidence was not material as it would
have been cumulative impeachment of a witness whose credibility
had already been thoroughly challenged.
It is well settled law that “[i]mpeachment evidence,
. . . as well as exculpatory evidence, falls within the Brady
rule. Such evidence is evidence favorable to an accused, so
that, if disclosed and used effectively, it may make the
difference between conviction and acquittal.” United States v.
Bagley, 473 U.S. 667, 676 (1985) (internal quotation marks and
citations omitted). Additionally, “[w]hen the reliability of a
given witness may well be determinative of guilt or innocence,
nondisclosure of evidence affecting credibility falls within
this general rule.” Giglio v. United States, 405 U.S. 150, 154
(1972) (internal quotation marks omitted). To succeed on his
claim, however, Appellant must still show the suppressed,
favorable evidence is material. See id. Materiality exists
17
under the Brady rule “if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” Bagley, 473 U.S. at
682. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. (internal quotation
marks omitted).
Appellant’s argument with respect to Karen Derder’s
federal immunity agreement fails for two reasons. First, Ms.
Derder specifically testified at the post-trial hearings that
she had no belief she would be protected from prosecution in the
Culpeper matter “[b]ecause the federal immunity only applied to
the trial of [Appellant].” J.A. 1506. Second, even assuming
Ms. Derder had the requisite belief and the Government
suppressed it, Appellant’s argument nonetheless fails as to
materiality. Appellant failed to demonstrate that there is a
reasonable probability that the outcome of the trial would have
been different had the defense been able to impeach Ms. Derder
using this additional material.
Appellant’s counsel conducted a thorough cross
examination of Ms. Derder. For example, Appellant’s counsel
impeached her on the following:
• She was terminated by Appellant for making a false claim to
an insurance company in 2010;
18
• She submitted a false resume to a doctor in Manassas,
Virginia, in 2010;
• She billed an insurance company fraudulently for work not
done on a patient and received the money herself for
personal use;
• She forged Appellant’s signature on prescriptions;
• She made inconsistent statements to the grand jury;
• She made fraudulent insurance claims on behalf of her
sister;
• She was convicted of writing false checks in 1991; and
• She allegedly embezzled from Appellant’s 401(k) plan.
Thus, as the district court pointed out in its ruling, Ms.
Derder was zealously impeached with a variety of material, and
this alleged additional area of impeachment, even if it did
exist, would have simply been cumulative. Therefore,
Appellant’s claim fails because there is not a “reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682.
B.
Drug Test and Bank Records
Next, Appellant argues the Government violated Brady
when it failed produce the result of a negative drug test,
19
undermining its theme that Appellant abused drugs, and when it
failed to produce Karen Derder’s bank records. According to
Appellant, the Pre-Trial Services drug test taken on the day of
Appellant’s arrest was negative, but the Government failed to
provide the defense with this exculpatory evidence until the
close of evidence. The jury was eventually given this
information in the form of a jury instruction from the court.
However, the Government had suggested throughout the trial that
Appellant had Vicodin or hydrocodone in his system when he was
arrested. Furthermore, Appellant contends the Government should
have produced Ms. Derder’s bank records. Instead, Appellant was
forced to subpoena the records himself, which he did not receive
until the eve of closing argument.
The Government argues that the drug test was not in
the possession or control of the Government or any member of the
trial team, and it did not have the test result in its file.
Special Agent Parker mistakenly testified (and mistakenly told
Appellant during his arrest) that the test was performed by the
United States Marshals. According to the Government, the test
was actually performed at the courthouse by Pre-Trial Services,
an arm of the court, and it was not aware of the result; and
therefore, according to the Government, it had no duty to
disclose the result. Additionally, the Government argues Ms.
Derder’s bank records were also not in its possession, and the
20
Government is not required to affirmatively seek out information
not already in its possession and deliver it to the defendant.
Appellant’s claims with regard to the drug test and
Ms. Derder’s bank records fail for the fundamental reason that
Appellant failed to demonstrate “that the prosecution had [the]
materials and failed to disclose them.” Bartko, 728 F.3d at
338. Brady does not require the Government to investigate the
defense’s theory of the case or create evidence that might be
helpful to the defense. This fundamental element of Brady
requires Appellant to show that the Government “suppressed” the
evidence in question, either willfully or inadvertently. See
United States v. King, 628 F.3d 693, 701-02 (4th Cir. 2011).
Simply, “[s]uppressed evidence is ‘information which had been
known to the prosecution but unknown to the defense.’” Spicer
v. Roxbury Corr. Inst., 194 F.3d 547, 557 (4th Cir. 1999)
(quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).
Neither the drug test result nor Ms. Derder’s bank records were
suppressed by the Government as they were not information known
to the prosecution but unknown to the defense. The Government
is only obligated to disclose favorable evidence in its
possession. Therefore, Appellant’s claim here fails.
Moreover, the district court gave a curative
instruction to the jury concerning the result of Appellant’s
drug test. The district court’s instruction informed the jury
21
of the negative result of Appellant’s drug test and instructed
them to disregard any testimony provided by federal agents that
made reference to and suggested Appellant had Vicodin or
hydrocodone in his system when he was arrested. Even if an
inadvertent Brady violation had occurred, the district court’s
curative instruction properly cured any potential prejudicial
effect. There is, therefore, no reasonable probability that a
different verdict would have been resulted.
III.
Appellant additionally maintains that his convictions
rest on insufficient evidence. “We review the sufficiency of
the evidence de novo. A defendant bringing a sufficiency
challenge must overcome a heavy burden, and reversal for
insufficiency must be confined to cases where the prosecution’s
failure is clear.” United States v. McLean, 715 F.3d 129, 137
(4th Cir. 2013) (internal quotation marks and citations
omitted). We “affirm the jury verdict when, ‘viewing the
evidence in the light most favorable to the prosecution, [it] is
supported by ‘substantial evidence,’” United States v. Hager,
721 F.3d 167, 179 (4th Cir. 2013) (quoting United States v.
King, 628 F.3d 693, 700 (4th Cir. 2011)). “Substantial evidence
consists of evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” King, 628 F.3d at
22
700 (internal quotation marks omitted). “As both the Supreme
Court and this Court have recognized, appellate reversal on
grounds of insufficient evidence will be confined to cases where
the prosecution’s failure is clear.’” Hager, 721 F.3d at 179
(internal quotation marks and alterations omitted).
A.
Controlled Substances Convictions
Appellant argues there was insufficient evidence to
support his conviction for conspiracy because the evidence
failed to demonstrate any agreement to illegally distribute
controlled substances between him and any other individual.
Appellant contends that although the conspiracy allegations
centered on Masooda Azad and Karen Derder, there was never any
agreement between the alleged members of the conspiracy. To the
contrary, the Government argues the evidence was sufficient to
convict Appellant of conspiracy because both Ms. Azad and Ms.
Derder testified they agreed to pick up prescriptions for
Appellant.
To prove a conspiracy, the Government must present
evidence of an agreement between two or more persons to
illegally distribute controlled substances. See United States
v. Burgos, 94 F.3d 849, 860 (4th Cir. 1996) (en banc). “The
presence of a knowing and voluntary agreement distinguishes
conspiracy from the completed crime and is therefore an
23
essential element of the crime of conspiracy.” United States v.
Hackley, 662 F.3d 671, 679 (4th Cir. 2011).
Here, viewing the evidence in the light most favorable
to the prosecution, Appellant’s conviction for conspiracy is
supported by substantial evidence. Testimony from both Ms.
Derder and Ms. Azad established that Appellant entered into an
agreement with each of them to pick up prescriptions in their
own names and deliver them to Appellant, either for him to
illicitly deliver to others, or for his own personal use.
Although Appellant’s testimony contradicted the testimony of Ms.
Derder and Ms. Azad, the jury elected to credit their testimony
over Appellant’s. We find no reason to overturn this reasonable
determination by the finder of fact.
Appellant also claims there was insufficient evidence
to support his distribution offenses. However, after a careful
review of the record, we conclude substantial evidence clearly
supports that Appellant distributed and dispensed a variety of
controlled substances for recreational purposes and not for a
legitimate medical and dental purpose. Therefore, Appellant’s
argument is without merit.
B.
Health Care Fraud Conviction
As previously explained, Appellant performed dental
work for his parents and submitted insurance claims for
24
reimbursement to their medical insurance plan from World Bank,
which was administered by AETNA, but he submitted the claims in
the name of Dr. Kassem rather than in his own name. According
to the Government, Appellant submitted claims in Dr. Kassem’s
name because he believed, based on his understanding of the plan
provisions, that AETNA would not reimburse him unless he
misrepresented that the work was performed by a non-family
member. By doing so, Appellant received reimbursement checks to
which he was not entitled. This formed the basis for
Appellant’s conviction for health care fraud.
Appellant challenges this conviction by first arguing
there was insufficient evidence because the Government failed to
prove that Appellant was a party to the AETNA contract.
According to Appellant, because he was not a party to the
contract, he was not bound by its terms that excluded
reimbursement for work performed on family members. Without
this foundation, Appellant argues the evidence could not
establish that he formed the specific intent to defraud AETNA.
We are not persuaded by this line of argument.
The health care fraud statute pursuant to which
Appellant was convicted makes it a crime to “knowingly and
willfully execute[], or attempt[] to execute, a scheme or
artifice . . . to defraud a health care benefit program.” 18
U.S.C. § 1347(a)(1); see also McLean, 715 F.3d at 136. “The
25
specific intent to defraud may be inferred from the totality of
the circumstances, and need not be proven by direct evidence.”
McLean, 715 F.3d at 140.
After careful review of the record, we conclude there
was substantial evidence to support Appellant’s conviction for
health care fraud. As an initial matter, whether Appellant was
a party to the insurance contract or not is not relevant to
whether he formed the specific intent to commit health care
fraud. Indeed, the fraud occurred when Appellant submitted a
claim for reimbursement in the name of Dr. Kassem when in
reality Appellant himself performed the dental work. Based on
the plan itself and the testimony of Kathy Richer, it was
evident that the AETNA/World Bank plan excluded “services
furnished by persons who are related to insured person in any
way by blood or marriage.” J.A. 1266. The testimony of both
Karen Derder and Janet Williams established that Appellant was
aware of this provision, and to circumvent it, he deliberately
submitted claim forms for his parents to appear as though the
work he performed had been performed by Dr. Kassem.
Additionally, both Ms. Derder and Ms. Williams testified that
Appellant received checks made out to Dr. Kassem and signed them
over to himself. The evidence was more than sufficient to show
that Appellant made the false representations to AETNA knowingly
26
and willfully, in order to receive money to which he was
otherwise not entitled.
Appellant further argues the evidence failed to
demonstrate that AETNA was a health care benefit program. We
disagree.
A “health care benefit program” is defined by the
statute as “any public or private plan or contract, affecting
commerce, under which any medical benefit, item, or service is
provided to any individual.” 18 U.S.C. § 24(b). After a review
of the record, we conclude, there was substantial evidence to
establish AETNA was a health care benefit plan under the
statute. The evidence showed AETNA was the agent of World Bank
for purposes of administering its health care plan, which was a
public or private plan or contract, affecting commerce, under
which any medical benefit, item, or service was provided to
individuals. Substantial evidence demonstrated that the
AETNA/World Bank plan provided health insurance coverage to the
plan participants, that AETNA administered that plan, acting as
World Bank’s agent, and that AETNA received the fraudulent
insurance claims submitted by Appellant. Therefore, we conclude
that, viewing the evidence in the light most favorable to the
prosecution, Appellant’s conviction for health care fraud is
supported by substantial evidence.
27
C.
After careful review of the record, we further
conclude Appellant’s claim of cumulative error based on the
district court’s admission of a semi-explicit photograph and on
the district court’s limitation on the amount of cumulative
patient witnesses Appellant could call is without merit.
IV.
For the foregoing reasons, the judgment of the
district court is affirmed. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
28