United States v. Amir Bajoghli

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4798

UNITED STATES OF AMERICA,

Plaintiff - Appellant.

v.

AMIR A. BAJOGHLI,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:14-cr-00278-GBL-1)

Argued: March 25, 2015 Decided: May 11, 2015

Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Reversed and remanded by published opinion. Judge Niemeyer
wrote the opinion, in which Judge Floyd and Senior Judge
Hamilton joined.

ARGUED: Paul Nathanson, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellant. Peter Hugh White, SCHULTE
ROTH & ZABEL LLP, Washington, D.C., for Appellee. ON BRIEF:
Dana J. Boente, United States Attorney, Matthew Burke, Assistant
United States Attorney, Katherine L. Wong, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellant. Joe Robert Caldwell, Jr.,
BAKER BOTTS LLP, Washington, D.C.; Kirk Ogrosky, Murad Hussain,
ARNOLD & PORTER LLP, Washington, D.C., for Appellee.

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NIEMEYER, Circuit Judge:

Dr. Amir Bajoghli, a board-certified dermatologist, was

indicted for executing a “scheme or artifice to defraud” when

billing public and private healthcare benefit programs during

the period from January 2009 through August 2012, in violation

of 18 U.S.C. § 1347, and for related offenses. The indictment

set forth, in 53 of its 60 counts, particular “executions” of

the fraudulent scheme.

On September 30, 2014, several weeks before the scheduled

trial date of October 22, 2014, Bajoghli filed a motion to

strike as unduly prejudicial certain financial details alleged

in Paragraph 50 of the indictment; on October 13, he filed a

motion in limine to exclude evidence of post-scheme conduct that

the government intended to introduce to show his consciousness

of guilt; and on October 20, he filed a motion in limine to

exclude all evidence of the scheme that was not directly related

to one of the 53 specifically charged executions. The district

court granted all three motions, the latter two on the day

before the trial was scheduled to begin. On the same day, the

government filed this interlocutory appeal, pursuant to 18

U.S.C. § 3731, challenging the rulings.

Because we conclude that the district court’s rulings

unduly restricted the latitude reasonably necessary for the

government to carry its burden of proof, we reverse and remand.

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 I

Bajoghli is the owner of the Skin and Laser Surgery Center,

a medical practice that operates from three offices in Virginia

and one in Washington, D.C., and that specializes in skin

diseases and the performance of Mohs micrographic surgery.

According to the indictment, Mohs surgery is a “highly

lucrative,” “specialized surgical technique for the removal of

skin cancer from healthy skin” that is “generally performed on

sensitive areas of the body, such as the head and neck, where

preservation of healthy tissue and cosmetic appearance are

particularly important.”

On August 12, 2014, the grand jury returned a 60-count

indictment against Bajoghli, charging: 53 counts of healthcare

fraud, in violation of 18 U.S.C. § 1347; 6 counts of aggravated

identity theft committed in connection with the scheme to

defraud, in violation of 18 U.S.C. § 1028A; and 1 count of

obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2).

The indictment alleged that over a three-and-one-half year

period -- from January 2009 through August 2012 -- Bajoghli

“knowingly and willfully execute[d] . . . a scheme and artifice

to defraud and to obtain, by means of materially false and

fraudulent pretenses, . . . money owned by and under the custody

and control of health care benefit programs, in connection with

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the delivery of health care benefits, items, and services.”

More particularly, seventeen counts alleged executions of the

scheme in which Bajoghli routinely diagnosed patients with skin

cancer, even though they did not, in fact, have cancer, and then

performed the medically unnecessary Mohs surgery on benign

tissue. Fifteen counts alleged executions of the scheme in

which Bajoghli directed “unlicensed and unqualified medical

assistants” to perform wound closures on the Mohs surgery

patients and then billed the healthcare benefit programs as if

he personally had performed or supervised the closures, thereby

claiming more money than he was entitled to under the

reimbursement schedule. Ten counts alleged executions of the

scheme in which Bajoghli billed for services that he claimed he

had personally performed when, in fact, they had been performed

by non-doctors, again allowing him to claim a higher

reimbursement than he would have been allowed to claim had he

disclosed that non-doctors had performed the services. And

eleven counts alleged executions in which Bajoghli submitted

bills “for preparing and analyzing [skin pathology] slides”

when, in fact, he had personally performed neither service, but

instead had hired outside contractors to perform the services at

a cost far below the amount he claimed from the programs.

Bajoghli filed three pretrial motions to limit the

government’s evidence against him at trial: the September 30

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motion to strike allegations of certain financial details from

Paragraph 50 of the indictment; the October 13 motion in limine

to exclude evidence of post-scheme conduct, which the government

planned to introduce to show consciousness of guilt; and the

October 20 motion in limine to exclude any evidence that was not

directly related to one of the 53 executions specifically

charged in the indictment.

In the September 30 motion, Bajoghli sought to strike from

Paragraph 50 the allegation that he “regularly billed the health

care benefit programs $300 to $450 per slide.” Paragraph 50

alleged in full:

The defendant fraudulently submitted claims to
patients’ health care benefit programs for preparing
the permanent section slides and analyzing those
slides, when he actually performed neither service.
The defendant regularly billed the health care benefit
programs $300 to $450 per slide, when he had paid the
Ohio company and the dermatopathologist a total of
approximately $15 per slide for actually rendering the
services.

(Emphasis added). Because healthcare benefit programs reimburse

physicians at a predetermined rate, Bajoghli claimed that

evidence of what he billed would be unfairly prejudicial because

those amounts did not represent what he actually expected to

receive from the programs. The district court granted

Bajoghli’s motion and, in doing so, also excluded, sua sponte,

any evidence of “the fees or payments Defendant allegedly made

to outside sources to perform” these services -- that is, the

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$15 per slide paid to outside contractors. The court stated

that the government could introduce evidence to prove that

Bajoghli “would have been paid less (or not at all) had the

claims not been materially false,” but that it could not state

the specific dollar amounts.

In the October 13 motion, Bajoghli sought to exclude

evidence of actions that he had taken after the charged scheme

had ended, which the government planned to introduce at trial to

show his consciousness of guilt. The government intended to

show that after Bajoghli was interviewed by law enforcement,

(1) he immediately stopped sending pathology slides to outside

contractors; (2) he stopped performing Mohs surgery without a

supporting biopsy; and (3) he deleted scheduling data for past

wound repairs that were performed by medical assistants.

Bajoghli argued that this evidence was irrelevant; that it was

evidence of subsequent remedial measures, which is barred by

Federal Rule of Evidence 407; and that, if admitted at trial, it

would be unfairly prejudicial, in violation of Federal Rule of

Evidence 403. The district court did not rule on this motion

until it ruled on the October 20 motion.

In the October 20 motion, Bajoghli sought to exclude

“volumes of irrelevant, uncharged misconduct” evidence, as he

characterized it, that related to his fraudulent conduct during

the three-and-one-half year period of the scheme but that was

7
not directly tied to any of the 53 charged executions. He

argued that because this evidence was not directly relevant to

any of the 53 charged counts, it was therefore improper

“[p]ropensity evidence” offered only to show the defendant’s bad

character, in violation of Federal Rule of Evidence 404(b). He

also argued that by waiting until so close to the date of trial

to give him notice of its intent to introduce this evidence, the

government failed to comply with the notice requirement of

Federal Rule of Evidence 404(b)(2).

On October 21, the day before the scheduled trial date, the

district court issued an order granting both the October 13 and

October 20 motions. In doing so, the court ruled, without

explanation, that “[a]ll testimony is . . . limited to the

53 charges in the indictment,” thus excluding evidence of

Bajoghli’s uncharged conduct. And in excluding evidence of the

defendant’s post-scheme conduct, it gave as reasons that the

government had not provided adequate notice of its intent to

introduce this “prior ‘bad act’ evidence,” as required by

Federal Rule of Evidence 404(b)(2), and, in any event, that the

evidence would be excluded under Federal Rule of Evidence 403,

as “the probative value of [the post-scheme] evidence is

substantially outweighed by the danger of unfair prejudice.”

The government filed this interlocutory appeal, seeking

review of the district court’s pretrial evidentiary rulings.

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 II

The government first challenges the district court’s ruling

limiting “[a]ll testimony . . . to the 53 charges of the

indictment” and thus excluding evidence of Bajoghli’s uncharged

conduct in furtherance of the scheme during the three-and-one-

half year period. It notes that this ruling is especially

debilitating because Bajoghli’s criminal intent is hotly

contested in this case, and it therefore contends that it needs

to rebut the defense that the charged transactions were

“isolated mistakes” by demonstrating that it did not merely

“cherry pick” aberrant transactions. As it argues, it must be

able to prove the entire scheme, including Bajoghli’s

intentional and willful conduct in executing it. Such a burden,

it maintains, requires that it be allowed to introduce evidence

that, although perhaps not directly related to any of the 53

executions charged, is nonetheless relevant to proving the

scheme itself. The government warns that if it were not able to

offer evidence of uncharged executions in proving the scheme, it

would have to charge hundreds, if not thousands, of counts in

every large-scale healthcare-fraud case, such as this one.

Bajoghli maintains that the district court correctly

concluded that the evidence at trial must relate to one of the

specifically charged executions of the fraudulent scheme and

that “evidence of an uncharged fraudulent scheme should not be

9
admitted.” He asserts that the government’s brief paints with

too broad a brush, ignoring the 53 specific and discrete charges

it brought under § 1347. As he argues, “the evidence at trial

must relate to a specific allegation of fraud that the jury will

have to consider.” Because, as he contends, any evidence of

uncharged conduct would be only “loosely relevant” to the

charged executions, the evidence should be excluded under

Rule 403 as unfairly prejudicial and under Rule 404(b),

including Rule 404(b)(2)’s notice requirement, as “other acts”

evidence.

The scope of relevant evidence at trial is, of course,

dictated by the indictment. In this case, however, Bajoghli’s

position reveals a misunderstanding of the nature of the charges

in the indictment and the scope of proof that is relevant.

Section 1347 punishes “[w]hoever knowingly and willfully

executes . . . a scheme . . . to defraud any health care benefit

program” when delivering healthcare services. 18 U.S.C.

§ 1347(a)(1) (emphasis added). A “scheme to defraud” is thus an

element of the offense. See United States v. McLean, 715 F.3d

129, 137-38 (4th Cir. 2013) (“To sustain a conviction under

18 U.S.C. § 1347, the government [is] required to prove beyond a

reasonable doubt that [the defendant] knowingly and willfully

executed a scheme to defraud insurers by billing for medically

unnecessary procedures” (emphasis added)). While fraud can be

10
committed simply by engaging in an isolated transaction, a

scheme to defraud requires a plot, plan, or arrangement that is

executed by a fraudulent transaction. See Black’s Law

Dictionary 1546 (10th ed. 2014) (defining “scheme” as “[a]

systemic plan; a connected or orderly arrangement”; or “[a]n

artful plot or plan, [usually] to deceive others”).

In this case, the scheme alleged in the indictment is

described as encompassing four types of conduct, beginning in

January 2009 and continuing through August 2012. And although

the indictment charged only 53 “executions” of the scheme in

53 separate counts, it also alleged that each particular

execution was “part of the scheme and artifice to defraud.”

Thus, the indictment charged that “for the purpose of executing

the aforementioned scheme and artifice,” described earlier to

have lasted from January 2009 through August 2012, the defendant

engaged in the particularly described fraudulent transactions.

(Emphasis added). Because a scheme is an element of a § 1347

offense and because the specifically alleged three-and-one-half

year scheme is made part of each execution, evidence of the

entire scheme is relevant to proving each particular execution.

It is important to recognize that just as all the overt

acts of a conspiracy need not be charged in an indictment, see

United States v. Janati, 374 F.3d 263, 270 (4th Cir. 2004) (“It

is well established that when seeking to prove a conspiracy, the

11
government is permitted to present evidence of acts committed in

furtherance of the conspiracy even though they are not all

specifically described in the indictment”), all executions of a

scheme likewise need not be charged, see United States v. Pless,

79 F.3d 1217, 1220 (D.C. Cir. 1996) (“That the government chose

to charge as the execution of the scheme only the three deposits

in National [Bank] does not reduce the boundaries of the scheme,

which the statute requires the government to prove. . . . [I]t

is not necessary for the government to charge every single act

of execution of the scheme in order to prove the whole scheme”).

Nonetheless, evidence of transactions and conduct not charged is

relevant to proving the existence of and the boundaries of the

conspiracy or scheme. See Janati, 374 F.3d at 275 (“[T]he

government has the right and the burden to prove in its case-in-

chief a conspiracy broader than the individual overt acts

alleged [and] therefore the district court must give the

government a reasonable opportunity to carry this burden”);

Pless, 79 F.3d at 1220 (“[T]he government is [not] artificially

limited to presenting to the jury only that portion of the

scheme that directly related to [the charged executions]”). A

scheme and a conspiracy thus are, for these purposes, similar

concepts. See United States v. Lothian, 976 F.2d 1257, 1262

(9th Cir. 1992) (“Because an essential element of these offenses

is a fraudulent scheme, mail and wire fraud are treated like

12
conspiracy in several respects”); United States v. Read, 658

F.2d 1225, 1239 (7th Cir. 1981) (“A scheme to defraud and

conspiracy embrace analogous, but not identical, concepts”);

United States v. O’Connor, 580 F.2d 38, 41-42 (2d Cir. 1978)

(equating “a continuing scheme” with a conspiracy); SEC v. Nat’l

Bankers Life Ins. Co., 324 F. Supp. 189, 195 (N.D. Tex. 1971)

(describing “the possibility of reading ‘scheme’ as synonymous

with a conspiracy” in a federal securities statute). We

therefore conclude that when the government charges a defendant

under § 1347 with a scheme to defraud and elects to charge only

some of the executions of that scheme, its election does not

limit its proof to only the charged executions. It may

introduce other evidence of uncharged executions to prove the

scheme.

To be sure, a district court still retains broad-ranging

discretion to manage trials and limit proof that is, for

instance, overly duplicative. But, as we noted in Janati, its

discretion must be balanced by the need to give the government

adequate latitude to prove its case, especially in a large and

complex healthcare-fraud case where the defendant’s criminal

intent is placed at issue. See 374 F.3d at 273-74. We conclude

that, in this case, the district court abused its discretion in

failing to give the government sufficient latitude to carry its

burden of proof.

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 In addition, it follows that because evidence of conduct

not charged in a specific execution may be relevant to the

nature and scope of a scheme charged under § 1347, such evidence

is intrinsic to the “scheme” element, and Rule 404(b) therefore

does not, as Bajoghli argues, regulate it as “other bad acts”

evidence. See Unites States v. Grimmond, 137 F.3d 823, 832 (4th

Cir. 1998) (“[W]hen ‘other crimes, wrongs, or acts’ evidence is

relevant to establishing an element of the offense, Rule 404(b)

is not even implicated”).

In sum, we conclude that the district court abused its

discretion in limiting the government’s proof to that which is

directly relevant to one or more of the 53 executions charged in

the indictment, without taking into account the relevance of

uncharged conduct to the alleged overarching scheme. The

government has the burden of proving a scheme to defraud and

Bajoghli’s knowing and willful conduct in executing the scheme.

And to that end, it must be allowed to offer evidence probative

of these elements, even if that evidence is not directly related

to one of the 53 executions.

III

The government next challenges the district court’s ruling

to exclude evidence of the defendant’s post-scheme conduct. It

seeks to introduce evidence (1) that “after being interviewed by

14
law enforcement, [Bajoghli] immediately stopped sending

pathology slides” to outside contractors; (2) that after his

interview, “the defendant stopped performing Mohs surgery

without a biopsy”; and (3) that the defendant “delet[ed]

scheduling data for the past wound repairs that were performed

by medical assistants.” The district court considered this

evidence to be “prior ‘bad act’ evidence” governed by

Rule 404(b) and excluded it on the ground that the government

had not provided Bajoghli with adequate notice, as required by

Rule 404(b)(2). ∗ Moreover, the court excluded this evidence under

Rule 403, concluding that its probative value was “substantially

outweighed by the danger of unfair prejudice . . . , confusing

the jury . . . , and waste of judicial resources.” The

government argues that the district court erred in applying

Rule 404(b) because the evidence is intrinsic to the charged

crimes; that is, it “bear[s] directly on the defendant’s intent

as to the charged fraud (not some other crime) and [is]

∗
Even if Rule 404(b) were to apply, it is difficult to
understand how the government had not provided adequate notice
to Bajoghli. Bajoghli’s motion to exclude evidence of his post-
scheme conduct admitted as much, stating, “The government has
indicated that they plan to introduce evidence of changes in
procedures and practices in [his] offices after he became aware
that he was under criminal investigation, presumably to
demonstrate that the prior practices were illegal.” Moreover,
in his motion to exclude this evidence, Bajoghli did not raise a
lack of notice as a ground for exclusion.

15
inextricably intertwined with how he committed the fraud and his

efforts to conceal it once he learned [of the] investigation.”

Bajoghli contends that Rule 404(b) does apply to this

evidence because, as he argued with respect to the evidence of

his uncharged conduct, it would not be “tied to any one of the

53 narrowly defined executions of healthcare fraud” and thus

would not be “intrinsic” to the charged offenses. More

particularly, he contends that “evidence of remedial measures,”

as a matter of law, “cannot be ‘intrinsic’ to any of [the

charged] offenses” because the remedial measures all occurred

after the period of time noted in the indictment as encompassing

the alleged fraudulent scheme. In addition, he contends that

its admission would be unfairly prejudicial under Rule 403,

parroting the district court’s conclusion.

Again, we agree with the government. As the government

points out, it intends to offer evidence of Bajoghli’s post-

scheme conduct to prove his knowledge and intent to defraud, as

is required by § 1347. For instance, that Bajoghli stopped

sending pathology slides to outside contractors after he learned

he was under investigation, but before federal agents had even

become aware of this practice -- as the government represents --

would tend to prove Bajoghli’s fraudulent intent and guilty

knowledge with respect to this aspect of the scheme. Similarly,

the government notes that Bajoghli “intends to challenge [the

16
charge of fraudulent Mohs surgeries] by asserting that he

exercised reasonable medical judgment in performing Mohs

surgeries and that any errors were the product of innocent . . .

mistakes.” Thus, it reasons, evidence that Bajoghli stopped his

practice of performing Mohs surgeries without first reviewing

biopsies once he learned of the investigation would tend to show

that he knew the accepted standard of care for diagnosing skin

cancer and had deliberately chosen to disregard it. And

finally, as the government notes, evidence that Bajoghli deleted

scheduling data from his computers -- data that revealed who had

actually performed wound-repair procedures -- would tend to

refute his claim that this aspect of the fraud resulted from

honest billing mistakes. Cf. McLean, 715 F.3d at 139

(concluding that evidence that the defendant “attempted to shred

patient files subpoenaed” by the government was probative that

the defendant knew he “had something to hide”). The proffered

evidence therefore would be probative to prove knowledge and

intent, which are elements of the crimes charged in the

indictment. And because Rule 404(b) does not apply to conduct

that is intrinsic to the charged crime, the district court erred

in applying the rule to this evidence. See United States v.

Basham, 561 F.3d 302, 326 (4th Cir. 2009) (“The Rule 404(b)

inquiry . . . applies only to evidence of other acts that are

17
‘extrinsic to the one charged’” (quoting United States v. Chin,

83 F.3d 83, 87 (4th Cir. 1996))).

Bajoghli nonetheless argues that his post-scheme conduct

cannot be intrinsic to the charged offenses because it took

place after the end of the period of activity charged in the

indictment. But it simply does not follow that conduct that

takes place after the end of the period of activity charged in

the indictment is -- as a matter of law -- subject to the

requirements of Rule 404(b). In fact, our case law demonstrates

that simply because a defendant’s conduct takes place outside

the time frame of the activities charged in the indictment does

not, as Bajoghli argues, automatically render that conduct

extrinsic to the charged offense and therefore subject to

Rule 404(b). See United States v. Kennedy, 32 F.3d 876, 885

(4th Cir. 1994) (“The basic flaw in [the defendant’s] argument

is that . . . [it] erroneously assumes that all evidence falling

outside the charged conspiracy period necessarily involves a

separate, unrelated offense subject to the strictures of

[Rule 404(b)]. It is well-established, however, that the mere

fact that the evidence involved activities occurring before the

charged time frame of the conspiracy does not automatically

transform that evidence into ‘other crimes’ evidence”).

Instead, conduct that takes place outside the time frame of the

charged offense can avoid having to comply with the requirements

18
of Rule 404(b) where it is, inter alia, “relevant to

establishing an element of the offense.” Grimmond, 137 F.3d

at 831-32. And, as we concluded above, Bajoghli’s post-scheme

conduct is relevant to proving his fraudulent intent and guilty

knowledge.

The district court’s additional ruling -- that Rule 403

requires exclusion of the evidence because its probative value

is substantially outweighed by the danger of unfair prejudice

and other concerns -- reflects a misunderstanding of what

constitutes unfair prejudice under Rule 403. Once it is

recognized that evidence is probative of an element of the crime

charged, “the balance under Rule 403 should be struck in favor

of admissibility, and evidence should be excluded only

sparingly.” United States v. Aramony, 88 F.3d 1369, 1378 (4th

Cir. 1996); see also United States v. Siegel, 536 F.3d 306, 319-

20 (4th Cir. 2008). And in this context, unfair prejudice

“speaks to the capacity of some concededly relevant evidence to

lure the factfinder into declaring guilt on a ground different

from proof specific to the offense charged.” Basham, 561 F.3d

at 327 (emphasis added) (quoting Old Chief v. United States,

519 U.S. 172, 180 (1997)) (internal quotation marks omitted).

Neither Bajoghli nor the district court has identified any

ground that would support a finding of guilt different from

proof that is specific to the offense charged.

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 Because the district court misapplied Rule 404(b) and

Rule 403 in excluding evidence of Bajoghli’s post-scheme

conduct, it abused its discretion.

V

Finally, the government challenges the district court’s

ruling to exclude evidence that, despite receiving between $100

and $130 per slide from healthcare benefit programs based on his

claim that he both prepared and analyzed his patients’ pathology

slides himself, Bajoghli paid outside contractors only $15 per

slide to perform those tasks. The government contends that

evidence of financial gain “is critical in a fraud case to

establish a defendant’s intent to defraud.” It argues that the

arrangement between Bajoghli and the outside contractors is

“part and parcel of proving this aspect of the fraud” and that

“an essential part of this arrangement was the amount that the

defendant paid them.” According to the government, “[t]he

substantial disparity between the amount that the defendant

received, and what he paid” can only “underscore[] [Bajoghli’s]

motive for this intentional deception.”

Bajoghli contends that evidence of what he paid the outside

contractors is irrelevant, and thus he urges us to affirm the

district court’s ruling to exclude it. According to Bajoghli,

“this case is about billing and whether or not the billing was

20
false.” Because “[a]ny amounts paid to outside contractors were

not part of the alleged misrepresentations in bills submitted to

insurers,” those amounts, he argues, “were not material to the

charged offenses of executing healthcare fraud schemes by

submitting false claims.”

We agree with the government. Because a violation of the

healthcare fraud statute requires knowing and willful conduct,

see 18 U.S.C. § 1347(a), the government must establish

Bajoghli’s intent to defraud. United States v. Godwin, 272 F.3d

659, 666 (4th Cir. 2001). And evidence of financial gain is

particularly probative in a fraud case to establish the

defendant’s intent to defraud. See, e.g., United States v.

Beverly, 284 F. App’x 36, 40 (4th Cir. 2008) (per curiam);

accord United States v. Davis, 490 F.3d 541, 549 (6th Cir.

2007); United States v. Dearing, 504 F.3d 897, 901 (9th Cir.

2007) (endorsing the Sixth Circuit’s declaration in Davis that

evidence of profits can serve as indirect proof of one’s intent

to defraud); United States v. Wheeler, 889 F. Supp. 2d 64, 68

(D.D.C. 2012) (“In a § 1347 [healthcare-fraud] case, ‘intent [to

defraud] can be inferred . . . from profits’” (quoting Dearing,

504 F.3d at 901)).

Moreover, the district court’s ruling allowing the

government to introduce evidence that the defendant “would have

been paid less (or not at all) had the claims not been

21
materially false” simply does not allow the government to

present its case with sufficient detail and narrative. Cf. Old

Chief, 519 U.S. at 183 (recognizing “the offering party’s need

for evidentiary richness and narrative integrity in presenting a

case”).

We conclude, accordingly, that the district court abused

its discretion in excluding this evidence.

REVERSED AND REMANDED

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