United States v. Ronald Poulin

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4418

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RONALD POULIN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:09-cr-00049-MSD-FBS-1)

Argued: October 27, 2011 Decided: January 18, 2012

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

Affirmed by unpublished per curiam opinion.

ARGUED: Richard Klugh, LAW OFFICE OF RICHARD C. KLUGH, Miami,
Florida, for Appellant. Alan Mark Salsbury, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON
BRIEF: Neil H. MacBride, United States Attorney, Alexandria,
Virginia, Katherine Lee Martin, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Following a trial in the United States District Court for

the Eastern District of Virginia, a jury convicted Ronald Poulin

of one count of health care fraud, in violation of 18 U.S.C.

§ 1347; twenty-six counts of making false statements relating to

health care matters, in violation of 18 U.S.C. § 1035; and one

count of altering records to obstruct an investigation, in

violation of 18 U.S.C. § 1519. The district court sentenced

Poulin to sixty-three months’ imprisonment and ordered

forfeiture of $1,326,852.70 in gross proceeds. Poulin appeals

the conviction, sentence, and forfeiture order. For the reasons

stated below, we affirm.

I.

A.

Poulin, a board-certified internist, owned and operated a

solo hematology/oncology practice in which he treated patients

for blood diseases and cancers. Treatment and billing in

Poulin’s practice involved multiple steps relevant to the facts

of the present case. First, Poulin, after meeting with a

patient, prescribed medications to treat the patient’s

condition. Nurses administered these drugs, often at subsequent

visits. The administering nurse then recorded the drug in the

patient’s file and noted all services provided to the patient

2
that day on a “charge ticket.” Billers collected the charge

ticket and inputted this information into a computer system to

create a “charge summary.” Poulin reviewed the charge summary

at the end of each day, and the billers entered his changes into

the system. They then used this information to bill the

patient’s insurance company. Poulin regularly billed two

federally funded insurance programs, Medicare and TRICARE, in

this manner.

The charges at issue in the present appeal arose out of

Poulin’s alleged overbilling of these programs. At trial, the

government argued that this overbilling took three forms:

1. Poulin billed for greater amounts of chemotherapy drugs

than he actually administered to patients. Although the

administering nurse accurately recorded the amount

provided on the patient’s charge ticket, Poulin changed

the quantity on the daily charge summary.

2. Poulin split 40,000-unit vials of Procrit, an anemia

drug, between patients so that each patient received

20,000 units. But, at Poulin’s instruction, nurses and

medical assistants recorded on charge tickets that each

patient received an entire 40,000-unit vial.

3. Poulin billed office visits in which patients received

chemotherapy drugs and injections under billing code

99213, signifying a “Level 3” visit, even though Poulin

3
 knew the office visits did not fulfill the necessary

requirements for this code. 1 The government specifically

argued that a Level 3 visit requires a personal encounter

between the patient and physician, but Poulin billed

under this code for visits where nurses administered

medications without him seeing or examining the patients.

Indeed, the government alleged he was not present in the

office during many of the visits. In billing for these

visits, the practice applied “Modifier 25,” indicating

that the patient received an additional evaluation or

management service in addition to the procedure or

service that was the central purpose of the visit. Here,

therefore, the modifier indicated a patient received a

service in addition to the administration of chemotherapy

or an injection.

1
The Physician’s Current Procedural Terminology Manual
(CPT), which instructs physicians on the proper meaning of
billing codes, describes five levels of office or outpatient
visits for established patients. These range from Level 1, the
least complex, to Level 5, the most complex type of visit. A
patient usually presents with only minimal problems at a Level 1
visit, and the physician generally spends only five minutes
performing or supervising the services provided. The CPT
specifies that a physician need not be present for this type of
visit. In contrast, a Level 5 visit typically involves forty
minutes of face-to-face interaction between the physician and
patient. Level 3 visits usually involve presenting problems of
low-to-moderate severity and require that the physician spend
fifteen minutes face-to-face time with the patient or family.

4
 The government initiated an investigation after receiving a

complaint about Poulin’s billing practices. During the course

of this investigation, agents served administrative subpoenas on

Poulin’s practice directing Poulin to produce certain patient

records. After receiving information that Poulin was directing

employees to make changes to the subpoenaed records, agents

responded by executing a search warrant on the practice.

On April 3, 2009, a grand jury returned an indictment

charging Poulin with forty-five counts, seventeen of which were

dismissed before trial. Trial began on the remaining counts on

November 3, 2009. In light of Poulin’s challenge to numerous

evidentiary rulings, disputes over whether charged errors

resulted in prejudice, and Poulin’s contention that there is

insufficient evidence to support his conviction, we review in

some detail the evidence that each party presented at trial.

B.

The government introduced voluminous documentary evidence

and witness testimony during the trial. Nine of Poulin’s former

employees testified during the government’s case-in-chief.

Nurses Kelly Shipman and Idella Thomas testified that they

administered chemotherapy drugs to patients and accurately

recorded the amounts they administered in patients’ charts and

charge sheets. Shipman and Thomas also stated that they

5
performed Procrit injections. With Procrit, they split vials

between patients but recorded on the charge tickets that they

dispensed an entire vial to each patient. Patients who provided

their own vials of Procrit, however, received the entire

quantity. According to Shipman, Thomas told her to do this, and

Thomas attested that Poulin instructed her to administer and

bill Procrit in this manner. Shipman also reported that the

practice had a standing policy to bill office visits in which

patients received injections as Level 3 visits. Thomas likewise

stated that, although she raised concerns that the practice was

billing office visits for patients who only received

chemotherapy as though a physician had seen them, Poulin and

Antoinette Johnson, 2 the office manager, dismissed them.

Finally, Shipman testified that, after Poulin received the

subpoenas for patient records, he informed the staff that he was

performing an audit of patient files. He directed employees to

make changes to files, but Shipman refused to do so because of

“legality” concerns. She subsequently saw Sherry Fann, a

receptionist, and Johnson working on these files and shredding

documents.

2
During the trial, witnesses variously referred to Ms.
Johnson as “Antoinette” and “Annette.” Because Johnson
identified herself as “Antoinette” in her testimony, we use this
name.

6
 Three medical assistants—Carrie Applin, Courtney Eure, and

Sharrah Jackson—testified, largely corroborating Thomas’s and

Shipman’s testimony. Applin, who worked for the practice for

four months, recounted that she saw Poulin mark charge tickets

to indicate he performed an office visit even though he had not

seen the patient—for instance, indicating he saw a patient who

received treatment prior to his arrival at the office in the

morning. Eure testified that the office had a standing policy

that, when Poulin prescribed Procrit, the nurses and assistants

should inject 20,000 units but bill for 40,000 units and for a

Level 3 office visit. Eure was also present when the government

subpoenaed medical records. In response to the subpoena, Poulin

asked her and other employees to alter subpoenaed files, but she

refused to follow his instructions because she believed the

conduct was illegal. Jackson, too, testified that the office

had a policy of splitting vials of Procrit and that she refused

Poulin’s request to alter subpoenaed records.

Billers from Poulin’s practice provided testimony regarding

his billing practices with respect to Procrit, chemotherapy

drugs, and office visits. Cherise Hairston testified that

Poulin wrote a note to the billers informing them that “the only

acceptable number of units for [Procrit] is 40,” meaning 40,000,

and he directed her to bill under code 99213 for office visits

that occurred while he was on vacation. Hairston also described

7
charge summaries on which Poulin increased the quantity of

chemotherapy drugs to be billed. Similarly, Amy Hague-Brown

attested that Poulin made changes to drug quantities and office

visit codes on charge summaries. Regarding coding of office

visits, Hague-Brown recounted that when she began to work for

Poulin she billed lab work and chemotherapy visits as Level 1 or

2 visits, but Poulin later instructed her to bill them as Level

3 or 4 visits.

Poulin’s practice employed Michelle Foltz as a biller for

approximately one month. Foltz testified that, during that

time, Poulin regularly increased chemotherapy drug quantities on

charge summaries. Similarly, where a charge summary indicated a

patient had received 20,000 units of Procrit, he changed it to

reflect that the patient had received 40,000 units. Foltz

became concerned about Poulin’s billing practices after patients

called to complain because they paid co-pays for office visits

in which they were not seen by a physician. Foltz reviewed

patient charts and determined that Poulin was billing for Level

3 visits at times when he did not see patients, including for

visits occurring while he was out of the office. When Foltz

confronted Poulin, he informed her it was his practice to bill

office visits in this manner, and he told her that she should

return co-pays to complaining patients but should not correct

the claim with the insurer. Foltz was so uncomfortable with

8
this response that she quit the following day and contacted the

government to report suspected fraud.

Finally, Sherry Fann, who worked as a receptionist in

Poulin’s practice, testified pursuant to an immunity agreement

with the government. Fann conceded that after records were

subpoenaed, she made changes to patient files at Poulin’s

direction. Poulin and office manager Johnson described the

changes as part of a regular audit, but the practice had not

undertaken a similar audit during the four-year period Fann was

employed there. Further, Fann knew that other employees had

refused to participate in the so-called audit, but she agreed to

do so because she “needed [her] job.” Most notably, she

admitted that she copied a nurse’s note drafted by Poulin into

multiple patients’ files, and, following Poulin’s instructions,

she signed the note illegibly.

In addition to the testimony of Poulin’s former employees,

one former patient, Rita Rahn, testified for the government.

Rahn kept a calendar of all of her medical appointments, and she

reported that on days on which Poulin billed for Level 3 office

visits, her calendar indicated she received only lab work and

did not have contact with a physician.

Three government agents testified. Agent Paul Hastings, of

the Department of Defense Criminal Investigative Service, stated

that he served administrative subpoenas on Poulin’s office on

9
July 9, 2008, requiring Poulin to produce certain Medicare and

TRICARE patient records. Hastings further noted that the

government expected these records to be produced in their

original condition. After receiving information that Poulin was

altering the records, Hastings obtained and executed a search

warrant to seize the records. FBI Agent Christopher Emsley also

participated in the search of Poulin’s office, and, through his

testimony, the government introduced documents seized during the

search. During the investigation, Angela Zoubul, an FBI

analyst, compared the patient files seized by the government

with Medicare and TRICARE billing data and with Poulin’s travel

records. In her testimony, Zoubul introduced two charts

summarizing instances in which the records indicated Poulin

billed for inflated quantities of chemotherapy drugs and for

Level 3 office visits that occurred while he was traveling.

Finally, the government presented testimony from Sheila

Stewart and Dan Johnson, representatives of Medicare and

TRICARE, respectively. Each witness, having reviewed the

program’s records, introduced summaries of relevant claims

Poulin submitted to these programs. Of particular note, these

witnesses stated their understanding of the 99213 billing code.

After first reading aloud the relevant portions of the CPT,

Stewart stated that the use of this code indicated that the

10
patient saw Poulin during the visit. Johnson also opined that

this code required the presence of a physician.

In addition to witness testimony, the government introduced

extensive documentary evidence, including patient files, billing

records, and travel records. Most notably, the government

presented documents from patient files that had been or were in

the process of being changed to correlate with services billed.

Original documents that were found during the search of Poulin’s

private office, for instance, had been replaced by altered

documents in patient files. The jury also viewed Poulin’s

handwritten notes instructing Sherry Fann to make specified

changes to drug quantities in patient charts. These notes were

found on Fann’s desk during the search of the practice.

C.

The defense called four witnesses who were employed in

Poulin’s practice at the time of trial. Sharon Guglielmini, a

registered nurse, told the jury that, although nurse Kelly

Shipman initially told her to administer 20,000 units of Procrit

and record 40,000 units, Poulin later provided a written order

that she should administer 40,000 units to each patient. She

conceded on cross-examination, however, that Poulin gave this

order only after the government executed the search warrant on

the practice.

11
 Antoinette Johnson, who served as Poulin’s office manager,

testified regarding the so-called audit of subpoenaed patient

files. After taking delivery of the subpoena, Johnson undertook

a review of the subpoenaed files. She testified that she found

numerous errors, including many instances of underbilling. She

asserted that she did not make any changes or add information to

patient files, however, and only compiled information on errors

in a separate document. When cross-examined, Johnson identified

Poulin’s handwriting on notes directing that changes be made so

that the information in patient files corresponded to services

billed.

Lynnette Riner began working for Poulin as a biller in June

2008, shortly before the government served the administrative

subpoenas. She testified that, although Poulin occasionally

made changes to charge summaries, he only downgraded the levels

of office visits—from Level 3 to Level 1, for instance—and he

did not change drug quantities. Carol Cross, another biller,

began working for Poulin in April 2009. Cross corroborated

Johnson’s testimony that a review of Poulin’s records revealed

significant underbilling, but she acknowledged on cross-

examination that underbilling on some claims would not justify

overbilling on other claims. Significantly, Cross conceded that

a Level 3 office visit must include an encounter between the

12
patient and the physician and only a Level 1 visit does not

require the presence of a physician.

At the close of evidence, the district court instructed the

jury on the relevant law. It declined to give several jury

instructions proposed by the defense. The district court also

overruled defense objections to statements made during the

government’s closing arguments. The jury returned guilty

verdicts on all counts submitted to it.

D.

Following the jury trial, on January 11, 2010, the district

court held a hearing to determine the amount of forfeiture

required under 18 U.S.C. § 982(a)(7). At this hearing, Poulin

requested, for the first time, a jury determination of

forfeiture. The district court rejected this request as

untimely and ordered forfeiture of $1,326,852.70, the entire

amount received through fraudulent bills. At sentencing, the

district court, over a defense objection, applied an enhancement

for Poulin’s role as a leader or organizer of criminal activity

and sentenced Poulin within the resulting Guidelines range to

sixty-three months’ imprisonment.

Poulin filed a timely appeal, challenging aspects of his

conviction, his sentence, and the district court’s forfeiture

order.

13
 II.

Poulin first challenges several of the district court’s

evidentiary rulings, which we review for abuse of discretion,

United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010). We

will find the district court abused its discretion if its

decision was “guided by erroneous legal principles or rest[ed]

upon a clearly erroneous factual finding.” Id. (quoting Brown

v. Nucor Corp., 576 F.3d 149, 161 (4th Cir. 2009)) (internal

quotation marks omitted). If we find an abuse of discretion,

the defendant will be entitled to a new trial on this ground

unless the error was harmless. Fed. R. Crim. P. 52(a); United

States v. Roe, 606 F.3d 180, 185 (4th Cir. 2010). “[T]o find a

district court’s error harmless, we need only be able to say

with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.” Johnson, 617 F.3d

at 292 (quoting United States v. Brooks, 111 F.3d 365, 371 (4th

Cir. 1997)) (internal quotation marks omitted). Where a paucity

of evidence otherwise supports the defendant’s conviction,

erroneously admitted testimony is likely to be important to the

jury’s verdict. See id. at 296. Conversely, “[o]ften in

criminal cases where there is a significant amount of evidence

which inculpates a defendant independent of the erroneous

testimony, the error is considered harmless.” Id. at 295.

14
 A.

Poulin argues on appeal that the district court erred in

allowing the Medicare and TRICARE representatives, Stewart and

Johnson, and former biller Michelle Foltz to testify as lay

witnesses regarding the meaning of Medicare billing codes. He

specifically objects to their testimony that billing code 99213

(i.e., a Level 3 office visit) requires the presence of a

physician. In addition, Poulin contends that the government

improperly elicited the testimony of a lay witness, Agent

Hastings, regarding the effect of the administrative subpoena on

Poulin’s right to alter the subpoenaed records.

Under Federal Rule of Evidence 701, a lay witness may

provide opinion testimony that is “(a) rationally based on the

perception of the witness, (b) helpful to a clear understanding

of the witness’ testimony or the determination of a fact in

issue, and (c) not based on scientific, technical, or other

specialized knowledge.” Fed. R. Evid. 701. An opinion based on

“specialized knowledge,” in contrast, may be provided by an

expert witness only after certain conditions are satisfied. See

Fed. R. Evid. 702. We have recognized that, often, this

“distinction . . . ‘is a fine one’ and ‘not easy to draw.’” Roe,

606 F.3d at 185 (quoting United States v. Perkins, 470 F.3d 150,

155 (4th Cir. 2006)).

15
 It is unnecessary in the present appeal to determine on

which side of this fine line the contested testimony falls

because, even assuming arguendo it was admitted in error, we can

identify no harm that resulted. Poulin asserts that Johnson,

Stewart, and Foltz should not have been permitted to opine that

a Level 3 office visit requires the presence of a physician. A

defense witness, however, provided identical testimony. Carol

Cross testified without objection that only a Level 1 office

visit does not demand interaction between the patient and the

physician, and she agreed that a Level 3 visit requires an

encounter between the patient and the physician. Under these

circumstances, we find that the jurors’ judgment could not have

been substantially swayed by the testimony of the government

witnesses.

Even absent Cross’s testimony, the potential for harm from

the witnesses’ testimony is minimal because the government

introduced into evidence the relevant CPT provisions, and these

provisions make clear that Poulin could not properly bill under

code 99213 for patients who received only chemotherapy drugs or

injections administered by nurses. To bill for a Level 3 office

visit, the CPT requires at least two of three components: (a)

“An expanded problem focused history”; (b) “An expanded problem

focused examination”; or (c) “Medical decision making of low

complexity.” A visit of this type, the CPT notes, “typically”

16
requires that the physician spend “15 minutes face-to-face time

with the patient and/or family.” Only the description of a

Level 1 office visit indicates that the presence of a physician

may not be required. Even allowing the possibility that a Level

3 visit may occur without a doctor’s presence, a reasonable

juror could not conclude, based on the plain text of these

provisions, that an expanded, problem-focused history or

examination occurred during visits where nurses merely

administered drugs pursuant to instructions Poulin provided as a

result of prior office visits.

Moreover, in billing for Level 3 visits, Poulin applied

Modifier 25. This modifier, according to the CPT, signifies

that “a significant, separately identifiable [evaluation and

management] service” was provided on the same day as another

billed procedure or service. By using Modifier 25, Poulin thus

indicated that a distinct service was being provided beyond the

injection or administration of chemotherapy, for which he also

billed. No “significant, separately identifiable” service can

be found, however, where a patient merely receives prescribed

drugs and never meets with or is examined by the physician. The

application of these provisions in relation to the facts of this

case is clear. Accordingly, we are satisfied that the testimony

regarding the meaning of the 99213 code, even if erroneously

admitted, did not substantially sway the jurors’ judgment.

17
 Likewise, we reject Poulin’s assertion that Agent

Hastings’s testimony caused harm because it implied that a

physician could not correct errors in patient files after

receiving a subpoena. The district court instructed the jury

that Poulin could not be convicted for obstructing an

investigation if he altered records “to accurately reflect” what

had occurred. Further, even if Agent Hastings’s statement had

the potential to influence the jury in a close case, we may say

with fair assurance that this did not occur here because the

changes Poulin made or directed to be made to patient records—

including falsifying nurses’ notes—are inconsistent with the

mere correction or clarification of records.

B.

Poulin next contends that witnesses provided improper

hearsay testimony when they recounted statements made by his

former employees about refusing to alter patient records.

Federal Rule of Evidence 801 defines hearsay as a statement that

is not made while the declarant is testifying at the current

trial or hearing and that is offered to prove the truth of the

matter asserted. Fed. R. Evid. 801(c). But it excludes any

statement “offered against a party” that was made “by the

party’s agent or servant concerning a matter within the scope of

the agency or employment” and was “made during the existence of

18
the relationship.” Fed. R. Evid. 801(d)(2)(D). This exclusion

applies whenever an employee makes a statement “about a matter

within the scope of her employment,” even if she is not

authorized to speak on the matter. United States v. Portsmouth

Paving Corp., 694 F.2d 312, 321 (4th Cir. 1982).

Poulin does not dispute that the nurses and medical

assistants who refused to change patient records at his

direction were his employees at the time they made the out-of-

court statements. Nevertheless, he argues that the exclusion

does not apply because an employee does not act within the scope

of her employment when she refuses to perform a task assigned by

her employer and labels this task illegal. This misconstrues

the relevant inquiry. The concern of Rule 801(d)(2)(D) is not

whether the employee was carrying out the employer’s wishes or

whether the employee’s statement was authorized. Rather, the

court must determine whether the subject matter and

circumstances of the out-of-court statement demonstrate that it

was about a matter within the scope of the employment. Here,

the employment duties of the employees who refused to alter

patient files included maintaining the contents of these files,

and they made the statements to Poulin and other employees.

Accordingly, the statements concerned a matter within the scope

of the employment relationship. See United States v. Lauersen,

348 F.3d 329, 340 (2d Cir. 2003) (determining that a nurse’s

19
statement that patient files were destroyed concerned a matter

within the scope of her employment relationship because nurses

in the defendant’s office “were responsible for helping maintain

patient files”).

C.

Poulin also charges that many of these contested statements

were inadmissible on the ground that they stated legal opinions.

Generally, a witness may not give “opinion testimony that states

a legal standard or draws a legal conclusion by applying law to

the facts.” United States v. McIver, 470 F.3d 550, 562 (4th

Cir. 2006). This rule is grounded in the principle that only

testimony that will assist the jury is admissible, and testimony

that provides “no information other than the witness’s view of

how the verdict should read” is unhelpful to jurors. United

States v. Offill, No. 10-4490, slip op. at 8 (4th Cir. Dec. 6,

2011) (quoting Weinstein’s Federal Evidence § 704.04[2][a] (2d

ed. 2003)) (internal quotation marks omitted). To determine

whether a witness has stated a legal opinion, a court should

consider whether the witness has used terms that have a

specialized meaning in the law or has responded to a question

that tracks the language of the legal principle at issue. See

United States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002).

20
 Poulin asserts that the district court abused its

discretion by admitting legal-opinion testimony when it

permitted Poulin’s former employees to testify that they refused

to alter patient files because they believed doing so was

illegal. Although a statement that conduct is illegal typically

represents a legal conclusion, here, the district court

instructed the jury that it allowed such testimony only so that

the jurors would “understand why [actors] did or said certain

things.” This testimony, therefore, did not simply tell the

jurors what result to reach; instead, it helped them to

understand the pertinent facts and was relevant to the issue of

whether Poulin had the requisite intent to obstruct an

investigation. Furthermore, the district court did not abdicate

its responsibility to instruct the jury on the relevant legal

standard, and it properly instructed the jurors on the need to

find that the defendant intended to impede, obstruct, or

influence an investigation to convict. 3

Finding no reversible error, we reject Poulin’s contention

that he is entitled to a new trial on the basis of an erroneous

evidentiary ruling.

3
As discussed in Part II.A, supra, any error in admitting
the testimony of Stewart, Johnson, Foltz, or Agent Hastings was
harmless.

21
 III.

Poulin asserts that the prosecutor committed reversible

misconduct during closing arguments. He challenges two

statements made during the prosecutor’s rebuttal to defense

counsel’s closing argument. First, he argues the prosecutor’s

statement to the jury that Sherry Fann’s “immunity agreement is

your guarantee that she’s telling the truth” constitutes

improper vouching. Second, the prosecutor repeatedly described

defense counsel’s arguments during its closing as “red

herrings,” which Poulin contends impugned the integrity of

defense counsel.

Whether a statement made in closing arguments has

unconstitutionally tainted the outcome of the case is a question

of law, which we review de novo. 4 United States v. Collins, 415

F.3d 304, 307 (4th Cir. 2005). Improper remarks during the

government’s closing arguments violate a defendant’s due-process

rights so as to warrant reversal only if the remarks “so

prejudiced the defendant’s substantial rights that the defendant

was denied a fair trial.” United States v. Wilson, 624 F.3d

640, 656 (4th Cir. 2010). Therefore, to obtain a new trial,

4
The government argues that the statement regarding Sherry
Fann’s truthfulness should be reviewed for plain error because
defense counsel failed to enter a contemporaneous objection.
Because we find that the statement did not cause prejudice, it
does not constitute reversible error under either standard.

22
Poulin must demonstrate both that a statement was improper and

that it caused prejudice. United States v. Smith, 441 F.3d 254,

264 (4th Cir. 2006). Four factors are relevant to our

evaluation of prejudice: “(1) the degree to which the comments

could have misled the jury; (2) whether the comments were

isolated or extensive; (3) the strength of proof of guilt absent

the inappropriate comments; and (4) whether the comments were

deliberately made to divert the jury’s attention.” Collins, 415

F.3d at 309 (quoting United States v. Sanchez, 118 F.3d 192, 198

(4th Cir. 1997)) (internal quotation marks omitted).

As to the first inquiry, the government’s statement that

Sherry Fann’s immunity agreement “guarantee[d]” her

truthfulness, at minimum, borders on improper vouching.

Certainly, it is permissible for the government to argue that a

witness’s immunity or cooperation agreement provides a strong

incentive for truthfulness. United States v. Sullivan, 455 F.3d

248, 259 (4th Cir. 2006). A prosecutor may not implicitly or

explicitly suggest, however, that the government “can monitor

and accurately verify the truthfulness of the witness’[s]

testimony.” Collins, 415 F.3d at 308 (quoting United States v.

Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990)) (internal quotation

marks omitted). Here, the prosecutor’s statement regarding

Sherry Fann suggested that the government could perfectly

enforce the immunity agreement and police against any and all

23
lies. At best, treating the immunity agreement as a “guarantee”

of truthfulness, rather than an incentive to provide truthful

testimony, verges on impropriety. 5

Nevertheless, we conclude that the remark resulted in no

prejudice. It was an isolated comment, so, in light of the

compelling evidence of Poulin’s guilt, it is highly unlikely the

remark misled the jury. Further, there is no indication that

the prosecutor intended to divert the jury’s attention. It

instead appears that the prosecutor was seeking to highlight the

incentive for truthfulness created by the immunity agreement,

which is permissible.

The government also must tread carefully to avoid improper

denigration of defense counsel in using the phrase “red herring”

during closing arguments. As the Eighth Circuit has noted, the

use of “red herring” may not be “combined with other statements

alluding to defense counsel and deceitful trial tactics.”

United States v. Shan Wei Yu, 484 F.3d 979, 986 (8th Cir. 2007).

5
The government urges that we should find this statement
proper because the statement was made during the trial in United
States v. Huff, 389 F. App’x 299 (4th Cir. 2010) (unpublished),
and, on appeal, we found the record in that case revealed no
improper vouching. Huff is of limited value, however, not only
because it is not binding precedent, but also because our
opinion does not expressly address the “guarantee” statement.
Instead, it states without elaboration that our review of the
prosecutor’s statements revealed no impermissible vouching. Id.
at 302. Accordingly, Huff does not dissuade us from expressing
our concerns in this case.

24
But the phrase is not improper if the prosecutor uses it only

“to argue that some of the issues raised by the defense were not

central to the ultimate finding of guilt.” Id. at 986–87. The

government here used the term in the latter, permissible sense.

The prosecutor did not attack “the institutional role of defense

attorneys.” United States v. Ollivierre, 378 F.3d 412, 421 (4th

Cir. 2004), vacated on other grounds by 543 U.S. 1112 (2005);

see also United States v. Vaccaro, 115 F.3d 1211, 1218 (5th Cir.

1997) (finding that a statement that defense lawyers as a class

seek to “muddle the issues” and “[t]ry[] to make [them] as fuzzy

as possible” was “clearly improper”). Rather, in referring to

certain defense arguments as “red herrings,” the prosecutor

explained why he believed these arguments were peripheral to the

central factual questions relevant to Poulin’s guilt.

In sum, we hold that Poulin was not deprived of due process

by reason of the prosecutor’s remarks.

IV.

Poulin also argues that we must reverse because the

government failed to disclose evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963), and the Jencks Act, 18 U.S.C.

§ 3500. The district court denied Poulin’s motion for a new

trial based on a Brady violation. We review this denial under

an abuse-of-discretion standard. Wilson, 624 F.3d at 660 &

25
n.24. We review the district court’s determination regarding

whether evidence must be disclosed pursuant to the Jencks Act

for clear error. United States v. Roseboro, 87 F.3d 642, 645

(4th Cir. 1996).

A.

Under the rule articulated in Brady, to comply with due

process, the government must “disclose ‘evidence favorable to an

accused upon request . . . where the evidence is material either

to guilt or to punishment.’” United States v. Caro, 597 F.3d

608, 619 (4th Cir. 2010) (omission in original) (quoting Brady,

373 U.S. at 87). To establish a Brady violation, a defendant

must show (1) the government failed, intentionally or

inadvertently, to disclose evidence in its possession; (2) the

evidence is favorable, meaning exculpatory or impeaching; and

(3) prejudice ensued because the evidence was material to the

defense. Wilson, 624 F.3d at 661. A defendant who “can only

speculate” as to the existence or content of undisclosed

evidence fails to satisfy this burden. Caro, 597 F.3d at 619.

The government consistently has represented that it

complied with its Brady and Jencks Act responsibilities, and the

district court, in denying Poulin’s motion for judgment of

acquittal and for a new trial, noted that there was no evidence

that the government withheld such material. We agree. Having

26
reviewed the record, we find that Poulin offers no more than

speculation that the government failed to disclose material,

exculpatory evidence. The only alleged Brady material that

Poulin identifies with specificity is the grand jury testimony

of Sharon Guglielmini, but, because Guglielmini testified for

the defense, we can identify no prejudice that may have resulted

from the government’s failure to disclose this material.

B.

The Jencks Act mandates that the government must disclose

any statement in its possession made by a government witness

that relates to the subject matter of the witness’s trial

testimony. 18 U.S.C. § 3500(b); see also Fed. R. Crim. P.

26.2(a). A “statement” for purposes of the Jencks Act need not

be “the witness’[s] actual words,” but “it must in some way have

been adopted or approved by the witness.” Roseboro, 87 F.3d at

645. A statement relates to the subject matter of trial

testimony if it “relate[s] generally to the events and

activities” to which the witness testified. United States v.

Derrick, 507 F.2d 868, 871 (4th Cir. 1974) (quoting United

States v. O’Brien, 444 F.2d 1082, 1086 (7th Cir. 1971))

(internal quotation marks omitted).

We find that the district court did not clearly err in

determining that the government complied with its Jencks Act

27
obligations. Poulin insists the government failed to disclose

prior statements by Agent Hastings, but he has presented no

evidence supporting the existence of such statements, which the

government denies. The government acknowledges that it did not

disclose the grand jury testimony of FBI Analyst Zoubul to the

defense. This testimony constitutes a “statement” under the

Act, see § 3500(e)(3), and the district court followed the

proper procedure in conducting an in camera review of this

testimony before determining that it was not Jencks material

because it did not relate to the subject matter of Zoubul’s

trial testimony, see Roseboro, 87 F.3d at 645–46. Based on an

independent review of the grand jury testimony, we conclude that

this determination was not clearly erroneous. The district

court correctly determined that the grand jury testimony related

exclusively to counts of the indictment about which Zoubul did

not testify at trial.

We therefore find no merit in Poulin’s contention that he

is entitled to a new trial based on the government’s failure to

disclose evidence.

V.

Poulin raises two additional challenges to his conviction,

both of which require only brief discussion. First, Poulin

argues the district court erred in denying numerous jury

28
instructions that he proposed. We review the district court’s

“decision to give or not to give a jury instruction . . . for an

abuse of discretion.” United States v. Allen, 491 F.3d 178,

186–87 (4th Cir. 2007) (quoting United States v. Moye, 454 F.3d

390, 397–98 (4th Cir. 2006)) (internal quotation marks omitted).

Legal questions, including whether the district court properly

instructed the jury on the statutory elements of an offense, we

review de novo. Id. at 187. We will reverse because of the

district court’s refusal to provide a requested instruction only

if (1) the instruction was correct, (2) it addressed an issue

that was not otherwise substantially covered by the court’s

instructions, and (3) the “failure to give the requested

instruction seriously impaired the defendant’s ability to

conduct his defense.” United States v. Lewis, 53 F.3d 29, 32

(4th Cir. 1995) (quoting United States v. Camejo, 929 F.2d 610,

614 (11th Cir. 1991)) (internal quotation marks omitted).

Having reviewed the district court’s instructions, we find

they correctly state the governing law. The district court

properly instructed the jury on the meaning of “materiality,”

which is well-established by precedent. See, e.g., Neder v.

United States, 527 U.S. 1, 16 (1999); Kungys v. United States,

485 U.S. 759, 770 (1988). Accordingly, it did not abuse its

discretion in rejecting Poulin’s proposed instruction on this

issue. The district court also provided correct instructions

29
regarding the necessary mens rea to support the charged offenses

and the jury’s responsibility to determine facts and evaluate

credibility. These rendered superfluous the remaining

instructions that Poulin sought.

Second, we reject Poulin’s challenge to the sufficiency of

the evidence supporting his conviction. We review such a

challenge de novo. United States v. Kelly, 510 F.3d 433, 440

(4th Cir. 2007). We review the record in the light most

favorable to the government in determining whether there is

substantial evidence to support the conviction. United States

v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011).

Circumstantial as well as direct evidence is considered, and the

government is allowed “the benefit of all reasonable inferences

from the facts proven to those sought to be established.”

United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

The conviction may be reversed only if no “rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt.” United States v. Tran Trong Cuong, 18 F.3d

1132, 1140–41 (4th Cir. 1994) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)) (internal quotation marks omitted). Based

on our careful review of the record, we conclude for the reasons

stated in the district court’s well-reasoned opinion denying

Poulin’s Rule 29 motion that ample evidence—including both

30
witness testimony and voluminous documentary evidence—supports

Poulin’s conviction for each count.

VI.

Poulin next challenges his sentence on the ground that the

district court erred in applying an enhancement for his

leadership role in criminal activity under U.S.S.G. § 3B1.1(c).

“A district court’s findings regarding offense enhancement are

factual in nature and are reviewed only for clear error.”

United States v. Carter, 300 F.3d 415, 426 (4th Cir. 2002).

The Sentencing Guidelines direct a sentencing court to

increase a defendant’s offense level by two levels if the

defendant “was an organizer, leader, manager, or supervisor” of

criminal activity involving “one or more other participants.”

U.S.S.G. § 3B1.1(c) & cmt. n.2. To be a “participant,” an

individual “need not have been convicted.” § 3B1.1 cmt. n.1.

Yet the individual must be “criminally responsible” for the

conduct, id., not an “innocent bystander[] used in the

furtherance of the illegal activity,” United States v. Harvey,

532 F.3d 326, 338 (4th Cir. 2008).

The district court rejected Poulin’s argument that all

other alleged participants in his crimes were not criminally

responsible because they lacked the requisite intent. The

district court instead concluded that the government established

31
by a preponderance of the evidence Sherry Fann’s criminal

responsibility for altering records with intent to obstruct an

investigation. The criminal nature of Fann’s conduct—which

included fabricating nurse’s notes and forging signatures—was

plain, and Fann participated in the conduct even after others

objected that they believed it was illegal. These facts make

clear that Fann was not a mere “innocent bystander” swept up in

Poulin’s criminal activity. Accordingly, the district court’s

conclusion was not clearly erroneous.

VII.

Finally, Poulin presses several arguments in challenging

the district court’s order imposing forfeiture in the amount of

$1,326,852.70. Poulin argues he was not afforded an opportunity

for jury resolution of the forfeiture claim. He also maintains

that under the forfeiture statute applicable to health care

offenses, he is entitled to a set-off for the amount he would

have received had he billed properly for services actually

rendered, so the district court erred in ordering forfeiture of

the entire amount he received through fraudulent billing.

Poulin finally argues that the government failed to establish

the statutory prerequisites for forfeiture of substitute assets.

We find each argument to be without merit.

32
 In an appeal from criminal forfeiture proceedings, we

review the district court’s legal conclusions de novo and its

findings of fact for clear error. United States v. Martin, 662

F.3d 301, 306 (4th Cir. 2011). We first consider Poulin’s

argument that he was improperly denied a jury determination of

the forfeiture claim. Federal Rule of Criminal Procedure 32.2

governs criminal forfeiture. Under the version of Rule 32.2 in

place at the time of Poulin’s trial, 6 the jury determines matters

regarding forfeiture only upon a party’s request. 7 See Fed. R.

Crim. P. 32.2(b)(4) (2009). Therefore, a defendant who failed

to make such a request before the jurors were excused waived his

right to have the jury resolve these matters. United States v.

Davis, 177 F. Supp. 2d 470, 483 (E.D. Va. 2001). Poulin did not

6
We note that there is no constitutional right to a jury
determination of forfeiture matters. Libretti v. United States,
516 U.S. 29, 49 (1995). The relevant inquiry, then, is whether
the district court complied with the applicable procedural rule.
7
On December 1, 2009—after the completion of the jury trial
on November 17, 2009, and before the hearing on forfeiture on
January 11, 2010, at which Poulin first expressly requested a
jury determination—Rule 32.2 underwent material changes with
respect to requests for a jury determination of forfeiture. The
post-December 1 Rule places the burden on the district court to
determine before the jury begins deliberations whether either
party requests a jury determination. See Fed. R. Crim. P.
32.2(b)(5)(A) (2010). A new procedural rule applies to pending
procedures only if feasible. 28 U.S.C. § 2074(a). It would not
have been feasible for the district court to comply with the
later version of Rule 32.2 in this respect because, by the time
it became effective, the jury had completed deliberations and
had been excused.

33
request a jury determination of forfeiture at the time of trial.

After the jury returned its verdict, defense counsel stated that

the court needed to address “the remainder of the indictment.”

But, immediately after making this statement, defense counsel

informed the district court that there was “[n]othing more” that

had to be addressed before the court excused the jury. By not

requesting a jury determination until a subsequent proceeding,

long after the jury was excused, Poulin waived this right.

We also conclude that the district court did not err in

ordering forfeiture of the entire amount Poulin received through

fraudulent billing without applying a set-off for the amount he

would have received had he billed properly for services actually

rendered. 8 A court sentencing an individual convicted of a

health care offense must order the forfeiture of the “gross

8
Poulin suggests he did not receive fair notice of
forfeiture because the government did not disclose its theory of
forfeiture or the amount it would seek. The indictment included
a forfeiture allegation, however, as required under both the
pre- and post-December 1, 2009, versions of Rule 32.2. Fed. R.
Crim. P. 32.2(a) (2010); Fed. R. Crim. P. 32.2(a) (2009). The
current version of the rule makes clear that the indictment need
not specify the amount of forfeiture, while the rule in force
prior to December 2009 was silent on this issue. In any event,
the indictment provided that the government intended to seek
forfeiture of “the gross proceeds” of the alleged health care
fraud, amounting to “[a] sum of money of at least $850,000.00.”
This, we conclude, was a sufficient allegation, notifying the
defendant of the government’s intent to seek forfeiture.

34
proceeds traceable to the commission of the offense.” 18 U.S.C.

§ 982(a)(7). In interpreting the continuing criminal enterprise

forfeiture provision in United States v. McHan, 101 F.3d 1027

(4th Cir. 1996), we explained that the term “proceeds”—as

opposed to “profits”—refers to “the total amount brought in”

through the criminal enterprise. Id. at 1041 (quoting Webster’s

Third New International Dictionary 1807 (1961)). Likewise, in

§ 982(a)(7), “gross proceeds” is properly interpreted to include

the total amount of money brought in through the fraudulent

activity, with no costs deducted or set-offs applied. See

United States v. Hui Chen, 350 F. App’x 520, 523–24 (2d Cir.

2009) (unpublished) (concluding that because the applicable

statute required the forfeiture of “gross proceeds,” “there is

no merit to defendant’s argument that she should be permitted to

subtract the market value of the ‘services’ she provided”).

Accordingly, the district court did not err in ordering

forfeiture of the total amount Poulin received through

fraudulent bills.

Finally, we find no error in the order requiring the

forfeiture of substitute property because, as the district court

held, see United States v. Poulin, 690 F. Supp. 2d 415, 431

(E.D. Va. 2010), the government established that the defendant

comingled legally and illegally obtained funds.

35
 VIII.

For the foregoing reasons, we affirm.

AFFIRMED

36