United States v. Paul Boccone , 556 F. App'x 215 ( 2014 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 12-4949
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    PAUL PHOTIADIS BOCCONE,
    Defendant - Appellant.
    No. 12-4952
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    CHARLES BROWN, JR.,
    Defendant - Appellant.
    Appeals from the United States District Court for the Eastern
    District of Virginia, at Alexandria.   Claude M. Hilton, Senior
    District Judge. (1:11-cr-00592-CMH-1; 1:11-cr-00592-CMH-2)
    Argued:   October 31, 2013                 Decided:   February 20, 2014
    Before NIEMEYER and WYNN, Circuit Judges, and Louise W.
    FLANAGAN, United States District Judge for the Eastern District
    of North Carolina, sitting by designation.
    Affirmed by unpublished opinion.      Judge Flanagan wrote    the
    opinion, in which Judge Niemeyer and Judge Wynn joined.
    ARGUED: John O. Iweanoge, II, THE IWEANOGES' LAW FIRM, P.C.,
    Washington, D.C.; Emma Mittelstaedt Burnham, BAKER BOTTS,
    L.L.P., Washington, D.C., for Appellants.      Michael Phillip
    Ben'Ary, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
    Virginia, for Appellee.   ON BRIEF: William H. Jeffress, Jr.,
    Nicholas C. Margida, BAKER BOTTS L.L.P., Washington, D.C., for
    Appellant Charles Brown, Jr. Neil H. MacBride, United States
    Attorney, Marc J. Birnbaum, Special Assistant United States
    Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
    Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    2
    FLANAGAN, District Judge:
    Following      a    four-day       trial,        a   jury       convicted        appellants
    Paul    Photiadis         Boccone      and     Charles       Brown,         Jr.,    of    multiple
    charges related to illegal distribution of prescription drugs.
    Boccone was convicted of additional health care fraud and tax
    charges.     The      convictions         arose       from     Boccone’s           operation       of
    Chantilly Specialists, a pain management clinic in Chantilly,
    Virginia,       and       Brown’s       participation             as    a     licensed       nurse
    practitioner in the clinic’s operations.                           On appeal, Boccone and
    Brown     challenge        their       convictions          and    sentences         on    several
    grounds,        including           admissibility             of        expert          testimony,
    sufficiency of the evidence, and procedural reasonableness of
    the sentences.        For the reasons presented below, we affirm.
    I.
    In an indictment filed December 22, 2011, the government
    charged     Boccone         and     Brown        with       conspiracy         to       distribute
    controlled      substances,         under        21   U.S.C.       §   846    (Count       1),   and
    distribution of controlled substances, in violation of 21 U.S.C.
    §   841(a)(1)      and     18   U.S.C.       §    2   (Boccone,         Counts      2-9;    Brown,
    Counts 2, 7, 9).            Boccone also was charged with possession of a
    firearm    in    relation         to    drug     trafficking,           under      18     U.S.C.    §
    924(c) (Count 10), health care fraud, under 18 U.S.C. § 1347
    (Counts 11-16), and failure to pay employment taxes, under 26
    U.S.C. § 7202 (Counts 17-28).
    3
    At    trial,       the      government         presented      testimony         by     former
    employees and patients of Chantilly Specialists, relatives of
    patients, as well as an expert witness in the field of pain
    management. Appellants introduced testimony by Boccone, Brown,
    and an expert with respect to the cause of death of several
    patients.       The evidence, viewed in the light most favorable to
    the government, may be summarized as follows.
    Boccone         was        the     owner       and      president          of     Chantilly
    Specialists from late 2005 to around December, 2011.                                   He has a
    Juris    Doctor      degree,       but    no    medical       training.          He     employed
    several   medical        providers        at    Chantilly        Specialists,          including
    Brown,    who     was      a    nurse     practitioner           licensed       to     prescribe
    medication      under          Virginia    law       under       the    supervision         of    a
    physician.        When Brown began work at Chantilly Specialists in
    July 2009, Dr. Carol Currier was a physician employed at the
    clinic, designated as supervising physician for Brown.                                 Dr. Joel
    Match    took   over       in    this     position        from    Dr.    Currier       in      2011.
    During the time that Dr. Currier was designated as supervising
    physician,      and      for      some    of     the      time     that    Dr.       Match       was
    designated      as      supervising        physician,            Boccone    also        provided
    direction to Brown in his treatment of patients and prescribing
    of medication.
    Boccone       and     Brown        interacted        nearly        every    day      at     the
    office.     Boccone often was in the examination room with patients
    4
    during medical appointments.                     Boccone interfered sometimes in
    medical     treatment            decisions,          including          by     giving    medical
    suggestions and opinions regarding medications and dosage.                                      In
    some instances, Brown signed prescriptions that Boccone filled
    out with medication amounts specified. Boccone also wore a lab
    coat and sometimes referred to himself as “Dr. Boccone.”
    In contrast to Boccone and Brown, Dr. Currier generally was
    present at Chantilly Specialists only once or twice a week. She
    was not told of positive drug screens, and she was not told of
    patient deaths, except once, although she had asked to be kept
    informed of such information.
    After         Dr.     Match        started           employment          at      Chantilly
    Specialists, Boccone sometimes steered patients from Dr. Match
    to    Brown,    the    result      being     that         they    would      continue     to   get
    medications they were on before, whereas Dr. Match would have
    reduced medication pending clinical tests.                               After August 2011,
    Dr.    Match     realized         that    Brown           did    not    always       follow    his
    instructions and ultimately recommended that Boccone terminate
    Brown.     Dr. Match, like Dr. Currier, was not aware of the full
    extent of treatment practices at Chantilly Specialists.
    Regarding typical practices at the clinic, patient visits
    generally were limited to fifteen to twenty minutes.                                      Boccone
    directed       use    of   an    egg     timer       to    limit       visit    times.        Brown
    generally      would       see    about    four      patients          per   hour.       Patients
    5
    typically did not get physical examinations.                            They sometimes
    received      medications     without       clinical           information     in        their
    charts or documentation of treatment at other facilities. A lead
    medical assistant employed at the clinic between January 2011
    and   March    2012    observed      that   he      “found      unusual    the      massive
    amounts of medications people were getting.”                      (JA 128).
    The waiting room was extremely crowded, and some patients
    had   track    marks    and   exhibited         other     indicia       that   they      were
    suffering from addiction or were in recovery. Many patients at
    the   clinic    traveled      long    distances          for    their    prescriptions,
    including six or seven hours away from locations in Kentucky,
    West Virginia, and Tennessee.               Some patients became agitated or
    angry if they did not get medications they sought, and police
    frequently     responded      to     reports        of   unruly       patients      at    the
    clinic.     As a result of the conditions in the office, Boccone
    carried a firearm at work.
    The government presented testimony and evidence regarding
    several former patients of Chantilly Specialists who received
    prescriptions     following        office       visits         with   Brown.         Justin
    McConnell was a patient between about 2008 and October 2011.                               At
    his first visit, McConnell did not provide medical records from
    prior     providers.     He    received         a    prescription         including        15
    6
    milligrams of oxycodone, 1 which was an increase over the amount
    he    claimed    he    was    receiving        from    a    podiatrist      at     the   time.
    McConnell never received a physical examination while a patient
    at Chantilly Specialists, and he never saw Dr. Currier. As his
    tolerance       grew    for     pain     medications,         McConnell       received     an
    increase in prescriptions to the point that he was addicted to
    the    medication,       and       he   was    receiving          prescriptions      for   80
    milligram       OxyContin       and     30     milligram          oxycodone       pills,   in
    addition to other medications. At times, Brown called McConnell
    on    his   personal     cell      phone,     and     McConnell      was    nervous      about
    prescriptions being changed depending on whether he called Brown
    back. Brown made McConnell uncomfortable by giving him “bear
    hug[s]” and sitting on his lap in the office.                        (JA 192).
    Eric Honesty was a patient from about August 2008 until
    February     2011.       Honesty’s        typical          appointments      took    ten   to
    fifteen minutes, and he never received any physical examination
    at    Chantilly       Specialists.            Boccone       and    Brown    were    involved
    jointly     with      some    of    Honesty’s       medical        visits    at    Chantilly
    Specialists, and they increased his prescriptions over time up
    1
    “Oxycodone is a potent and addictive opioid that is
    classified as a Schedule II drug under the Controlled Substances
    Act.” United States v. McIver, 
    470 F.3d 550
    , 553 n.3 (4th Cir.
    2006) (citing 21 U.S.C. § 812 (2000); 21 C.F.R. § 1308.12(b)(1)
    (2004)). “It is marketed in instant-release form under trade
    names such as Roxicodone, Roxicet, OxyIR, and OxyFAST, and in a
    controlled release form as OxyContin.” 
    Id. 7 to
    680 to 700 narcotic pain pills per month.                         At one visit,
    Honesty agreed to return 80 milligram OxyContin pills to Boccone
    and   Brown    in     exchange    for   a       prescription      increase.      Honesty
    returned “thousands” of 80 milligram pills in this manner.                            (JA
    337). Three times when he attempted to take the medications as
    written   in    his    prescriptions,           he   overdosed.      At    one    point,
    Boccone and Brown instructed Honesty to take only half of the
    pills they had prescribed for him. During the time that Honesty
    was a patient at Chantilly Specialists, Honesty was charged with
    unlawful distribution of oxycodone, some of which he obtained by
    filling prescriptions issued by Brown.
    King Dao was a patient from approximately 2009 to 2011.                         He
    received pain medications, including 80 milligram OxyContin and
    30 milligram oxycodone pills, following appointments with Brown
    and at times at direction of Boccone.                    He received medications
    despite   having      been     tested   positive       for   cocaine,      and   at   one
    point he received medications after having spent 78 days in jail
    following      an     arrest     for    prescription         fraud    at     Chantilly
    Specialists, with no medical examination.
    Michael Rogers was a patient from 2007 to the date of his
    death, on April 8, 2010. He drove about six hours from Johnson
    City, Tennessee to receive prescriptions at the clinic.                          Boccone
    directed an increase in his pain medications in February 2009,
    to 80 milligram OxyContin and 30 milligram Roxicodone pills, a
    8
    level that was maintained by providers, including Brown, until
    Rogers’s       death.      Brown      admitted    making     changes     to     Rogers’s
    medical chart after learning of Rogers’s death.
    The government also introduced testimony and a report of an
    expert witness qualified in the field of pain management, Dr.
    Robin Hamill-Ruth. Testifying as to standards of practice in the
    field     of     pain     management,      she     summarized       guidelines         for
    prescribing medications for chronic pain, as well as standards
    for evaluations, referrals, documentation, periodic review and
    examinations.            Dr.   Hamill-Ruth       also    identified      “red    flags”
    indicating      patients       with    problems    with    addiction,         abuse,    or
    diversion of medication, which would signal to a provider that
    there    is     not     legitimate     medical     purpose    for      prescriptions.
    These include traveling long distances to receive medications,
    early     refills,       frequent      calls,     lost    prescriptions,        violent
    behavior, and receiving treatment from multiple providers.                             She
    also described the significance of 80 milligram OxyContin pills,
    which is a high dosage amount that she had never prescribed in
    her twenty-five years of pain management practice.
    In addition, Dr. Hamill-Ruth outlined her review of certain
    patient records, including those for Honesty, Dao, and Rogers,
    underlying individual distribution charges in this case.                               For
    each patient reviewed, Dr. Hamill-Ruth concluded that the entire
    course    of    treatment      was    outside     the    bounds   of    the    accepted
    9
    standard      of    care    for    pain    management     practice       and   for    no
    legitimate medical purpose.               She cited in each case indicia that
    should have led a reasonable, licensed medical practitioner to
    cease    or     reduce       making    prescriptions,          require     diagnostic
    examinations, and monitor patients to ensure legitimate medical
    care.
    Finally,      the     government      introduced    testimony       regarding
    Boccone’s health care billing fraud and failure to pay taxes.
    With    respect      to    billing    fraud,     the   provider    listed      in    the
    medical record for one medical visit was Boccone, whereas the
    provider billed to Medicare was a physician’s assistant.                             With
    respect to the tax charges, Boccone failed to pay employment
    taxes despite withholding tax from employee paychecks.
    Upon the close of the government’s evidence, the government
    voluntarily        moved    to   dismiss    three   of   the    health    care   fraud
    charges (Counts 11, 12, and 13), which motion the district court
    granted.       Defendants moved for judgment of acquittal at that
    time, and again moved for judgment of acquittal following the
    close of their case, which the district court denied.
    Following closing argument and jury instructions, the jury
    found Boccone guilty of the conspiracy charge (Count 1), six of
    the distribution charges (Counts 2, 3, 4, 5, 7, and 9), one
    health care fraud charge (Count 14), and all of the tax charges
    (Counts 17-28).           The jury found Boccone not guilty of two of the
    10
    distribution         charges    (Counts      6     and   8),    and    possession     of    a
    firearm in furtherance of a drug trafficking crime (Count 10).
    The jury found Brown guilty of the conspiracy charge (Count 1)
    and all three of the distribution charges against him (Counts 2,
    7, 9).        Finally, the jury found that death did not result from
    the use of the substance distributed in Count 9, for patient
    Rogers.
    In       preparation       for     sentencing,            the    probation      office
    prepared       a    presentence      report,       which   calculated        a   guideline
    range    of    360    months    to    life    imprisonment           for   Boccone   and    a
    guideline range of 188 to 235 months imprisonment for Brown.
    After adopting the guideline ranges in the presentence reports
    without change, the court varied downward, sentencing Boccone to
    180 months imprisonment and Brown to 60 months imprisonment.
    These appeals followed.
    II.
    A.
    We address first Boccone’s argument that the district court
    erred in allowing admission of the expert report and testimony
    of Dr. Hamill-Ruth.
    “We review for abuse of discretion the district court’s
    decision       to    admit     expert   testimony          under      Federal     Rule     of
    Evidence 702.”         United States v. Wilson, 
    484 F.3d 267
    , 273 (4th
    Cir. 2007) (citing Kumho Tire Co. v. Carmichael, 
    526 U.S. 137
    ,
    11
    152 (1999)). “We will not vacate a conviction unless we find
    that the district court judge acted arbitrarily or irrationally
    in admitting evidence.”               United States v. Basham, 
    561 F.3d 302
    ,
    326 (4th Cir. 2009) (internal quotations omitted).                          In addition,
    evidentiary        rulings     are        subject     to     harmless     error        review.
    United States v. Mouzone, 
    687 F.3d 207
    , 216 (4th Cir. 2012).
    Federal Rule of Evidence 702 provides:
    A witness who is qualified as an expert by knowledge,
    skill, experience, training, or education may testify
    in the form of an opinion or otherwise if: (a) the
    expert's scientific, technical, or other specialized
    knowledge will help the trier of fact to understand
    the evidence or to determine a fact in issue; (b) the
    testimony is based on sufficient facts or data; (c)
    the testimony is the product of reliable principles
    and methods; and (d) the expert has reliably applied
    the principles and methods to the facts of the case.
    Fed.    R.    Evid.     702.     “A       ‘trial     judge   must   have    considerable
    leeway       in   deciding     in     a    particular        case   how    to     go    about
    determining       whether      particular       expert       testimony     is   reliable.”
    
    Wilson, 484 F.3d at 273
    (quoting Kumho 
    Tire, 526 U.S. at 152
    ).
    “Thus, ‘Rule 702 grants the district judge the discretionary
    authority, reviewable for its abuse, to determine reliability in
    light    of       the    particular         facts     and     circumstances        of     the
    particular case.’”          
    Id. (quoting Kumho
    Tire, 526 U.S. at 158
    ).
    The government contends as an initial matter that we need
    not reach Boccone’s arguments as to admissibility of Dr. Hamill-
    Ruth’s       testimony    because         it   was    irrelevant     with       respect    to
    12
    Boccone’s distribution of controlled substances.                           The government
    points out correctly that to convict Boccone of distribution of
    controlled substances, it need only show that Boccone, not a
    licensed        medical         provider,           distributed       or     caused        the
    distribution       of      a    controlled          substance.     See     21     U.S.C.     §
    841(a)(1); 18 U.S.C. § 2.
    Nevertheless, Boccone is charged in this case not only with
    distributing       controlled         substances       individually,        but    also     in
    concert with and in conspiracy with other medical providers,
    particularly       Brown.        In     order    to    convict    a     licensed    medical
    provider of unlawful distribution of controlled substances, the
    government must prove that the provider’s “‘actions were not for
    legitimate       medical        purposes        in    the     usual     course     of      his
    professional medical practice or [were] beyond the bounds of
    medical practice.’”             United States v. Singh, 
    54 F.3d 1182
    , 1187
    (4th Cir. 1995) (quoting United States v. Tran Trong Cuong, 
    18 F.3d 1132
    ,     1141     (4th       Cir.1994)).           As    discussed       below     in
    addressing       the       sufficiency          of      the      evidence,        Boccone’s
    convictions may rest at least in part on the theory that Boccone
    directed     Brown       to     issue     prescriptions          that      were    not     for
    legitimate medical purposes or were beyond the bounds of medical
    practices.
    Accordingly, expert testimony regarding whether treatment
    in   this   case     was       beyond    the    bounds      of   medical     practice       is
    13
    relevant      to    the   counts        of     conviction       against    both   Brown      and
    Boccone.      We turn, therefore, to address Boccone’s arguments as
    to the admissibility of that testimony.
    Boccone       contends          that     Dr.   Hamill-Ruth’s          testimony       and
    report does not meet the standards set forth in Fed. R. Evid.
    702 for multiple reasons, including that Dr. Hamill-Ruth (1) did
    not accurately set forth the standards of model policies and
    guidance on prescribing narcotics, (2) used only sixteen hours
    to review thousands of pages of medical records, (3) did not
    examine any of the patients referred in her report, (4) did not
    adequately         specify    records           reviewed,       and    (5)    stated     legal
    conclusions such as “it is illegal” within her written report.
    This court previously has upheld the use of expert medical
    testimony      similar       in    many       respects     to    the   testimony       of    Dr.
    Hamill-Ruth.         For example, in United States v. McIver, 
    470 F.3d 550
       (4th   Cir.    2006),       the        government    offered       testimony     of    an
    anesthesiologist qualified as an expert in pain management, who
    concluded, “[b]ased on his review of certain patient records,”
    that    the   “treatment          of    several       of   Appellant’s       patients       fell
    outside the parameters of legitimate medical practice.”                                
    Id. at 556.
       For one patient, he opined that “there was ‘no legitimate
    reason to be prescribing’ combinations of opioids in such high
    doses based on the patient’s medical conditions,” and in light
    of the patient’s “history of drug abuse.” 
    Id. For another,
    he
    14
    testified      that     it   was    “outside         the       legitimate       practice         of
    medicine for Appellant to prescribe high doses of opioids given
    [the patient’s] history of negative drug screens.”                             
    Id. Similarly, in
    United States v. Allere, 
    430 F.3d 681
    (4th
    Cir. 2005), a physician qualified as an expert reviewed selected
    medical files in evaluating whether prescriptions were issued
    outside the scope of legitimate medical practice. 
    Id. at 686.
    The   expert     testified       that      “many     of       the    prescriptions        lacked
    appropriate documentation or had no ‘follow up’ treatment, that
    the defendants ignored ‘red flags’ indicative of drug abuse, and
    that certain prescriptions and dosages were inappropriate.”                                    
    Id. Likewise, in
    Tran Trong Cuong, an expert provided testimony
    following a medical file review, opining, for example, “that
    persons claiming . . . severe pain over a long period of time
    should    have    had    additional         reports       in        their   files    of    x-ray
    examinations,       blood     tests     and      other        procedures     attempting          to
    identify the source of the pain.” Id.; see also United States v.
    Hurwitz, 
    459 F.3d 463
    , 467 (4th Cir. 2006) (“The government’s
    expert     witnesses         testified        that        a     doctor       who     knowingly
    prescribed opioids to an addict or to a patient the doctor knew
    was   selling    the     drugs     on   the      street        was    acting    outside         the
    bounds of legitimate medical practice”); 
    Singh, 54 F.3d at 1187
    &   n.3   (expert     testified       as    to     “the       inappropriateness           of    the
    15
    prescriptions,” upon review of “information relating to” each
    patient).
    In    this   case,      Dr.   Hamill-Ruth           was   qualified,    without
    objection, as an expert in pain management.                          Similar to the
    expert testimony in McIver, Allere, and Tran Trong Cuong, Dr.
    Hamill-Ruth described her understanding of the standard of care
    for   treating     patients    in   a    pain     management     context     and   then
    compared the treatment shown in the medical records in the case
    with that standard of care, finding the treatment shown to be
    outside legitimate medical practice.                 In doing so, she cited red
    flags similar to those identified by experts in the cases noted
    above, including negative drug screens, lack of documentation
    and follow up treatment for medical conditions, prescriptions
    over a long period of time without medical examinations, high
    dosage     combinations,      and   prescriptions          despite   signs   of    drug
    addiction or street sales. (JA 3827-3836; 536-551).
    In light of Dr. Hamill-Ruth’s qualifications and detailed
    manner in which she outlined her review of patient records and
    evidence considered as a basis for her opinions, we conclude
    that her testimony and report were both scientifically valid and
    helpful to the jury.          Contrary to Boccone’s argument here, there
    is no requirement in our precedent that the expert must examine
    the patients whose files are reviewed, or set forth a particular
    model    policy    or   standard,       or    cite   to    particular    records    or
    16
    amounts    of    records          for    any   particular      patient.        Rather,   the
    points of criticism raised by Boccone go to the weight of the
    testimony,       and    these       points      were   open     for      exploration     upon
    cross-examination of the expert witness. 2                          Indeed, as the court
    noted in McIver, such cross-examination enabled the appellants
    to    point     out    “varying          theories     of    pain     management,    .    .   .
    differences in points of view as to appropriate levels of pain
    medication,”          and    make       challenges     to     the    expert’s    “opinions
    regarding       [the    appellant’s]           treatment      of    specific    patients.”
    
    McIver, 470 F.3d at 556
    .
    We address separately Boccone’s argument that the report
    improperly states a legal conclusion, referencing in particular
    the   statement        by     Dr.       Hamill-Ruth    that    “[i]t      is   illegal   and
    grossly substandard for a person without medical license and DEA
    registration to make therapeutic decisions and alter prescribing
    of controlled substances.” (JA 3828).                       This statement is made in
    the   context     of        Dr.    Hamill-Ruth’s       review       of   Rogers’s   medical
    file, in which Boccone directs medication dosage and treatment
    for Rogers in an office visit note.                    (Id.).
    2
    Boccone also urges the court to consider a report prepared
    by Jason Brajer, MD, approximately two months following the jury
    verdicts in this case. Dr. Brajer comments upon and provides a
    counter-point to conclusions reached by Dr. Hamill-Ruth in her
    expert report. In the same vein as the criticisms noted above,
    the points raised by Dr. Brajer more properly go to the weight
    of the testimony rather than its admissibility.
    17
    This court has observed that “opinion testimony that states
    a legal standard or draws a legal conclusion by applying law to
    the facts is generally inadmissible.” 
    McIver, 470 F.3d at 562
    .
    Nevertheless, an expert may testify that treatment was “outside
    the bounds of . . . professional medical practice,” or that
    “treatment       of     certain      patients      was        either       illegitimate         or
    inappropriate.”          
    Id. Such language
    “falls within the limited
    vernacular that is available to express whether a doctor acted
    outside the bounds of his professional practice.”                               
    Id. In accord
    with McIver, the expert’s statement here that “it
    is illegal and grossly substandard” for a person without medical
    license to make therapeutic decisions, in reference to Boccone’s
    involvement in treatment of Rogers, reasonably articulates the
    extent of departure from usual professional practice in this
    case.         The      statement      thus        is    relevant           to     the    jury’s
    determination that treatment of Rogers was “outside the bounds
    of . . . professional medical practice.”                             
    Id. In any
    event,
    even    assuming      that     the   reference         to   “it   is       illegal”     crossed
    outside    of    the    “limited      vernacular,”            
    id., available in
       this
    context    to    describe       legitimate        medical      practice,          we    conclude
    that    the     error    was    harmless,       given       the      weight       of    evidence
    against Boccone apart from that reference in Dr. Hamill-Ruth’s
    report.       See United States v. McLean, 
    715 F.3d 129
    , 143 (4th
    Cir.    2013)    (“[W]e      need    only    say       with    fair     assurance,           after
    18
    pondering      all    that   happened      without    stripping         the    erroneous
    action from the whole, that the judgment was not substantially
    swayed by the error.”) (internal quotations omitted).
    In sum, the district court properly admitted Dr. Hamill-
    Ruth’s testimony and report, and Boccone cannot establish error
    warranting     reversal      of    his    convictions      on   the    basis    of   such
    testimony and report.
    B.
    Appellants      argue      that    the    evidence   was       insufficient    to
    convict them of any of the counts of conviction.
    We must sustain the jury’s verdict “if there is substantial
    evidence, taking the view most favorable to the Government, to
    support [the convictions].”                United States v. Moye, 
    454 F.3d 390
    ,     394   (4th     Cir.      2006)    (en     banc)    (internal         quotations
    omitted). “[S]ubstantial evidence is 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.” United States v. Burgos, 
    94 F.3d 849
    , 862 (4th Cir.
    1996) (en banc).         In reviewing a sufficiency argument, we “must
    consider circumstantial as well as direct evidence, and allow
    the government 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).                        In addition,
    we “may not weigh the evidence or review the credibility of the
    19
    witnesses,”    as    “those    functions    are   reserved    for    the   jury.”
    United States v. Wilson, 
    118 F.3d 228
    , 234 (4th Cir. 1997).
    1.
    We address first the sufficiency of the evidence to convict
    appellants    of     the      individual    counts    of     distribution     of
    controlled substances under 21 U.S.C. § 841.
    Section 841 provides that “[e]xcept as authorized by this
    subchapter, it shall be unlawful for any person knowingly or
    intentionally . . . to manufacture, distribute, or dispense . .
    . a controlled substance.” 21 U.S.C. § 841(a)(1).                   An exception
    pertinent to this case is set forth in § 822(b), which provides:
    Persons registered by the Attorney General under this
    subchapter to manufacture, distribute, or dispense
    controlled   substances or   list   I  chemicals   are
    authorized to possess, manufacture, distribute, or
    dispense such substances or chemicals (including any
    such activity in the conduct of research) to the
    extent   authorized  by  their  registration  and   in
    conformity   with   the  other  provisions   of   this
    subchapter.
    
    Id. § 822(b).
          As the court previously has observed, regulations
    promulgated by the Attorney General provide “that a prescription
    for a controlled substance is effective only if it is ‘issued
    for a legitimate medical purpose by an individual practitioner
    acting   in   the    usual    course   of   his   professional       practice.’”
    
    Hurwitz, 459 F.3d at 475
    (citing 21 C.F.R. § 1306.04(a)).
    Thus, to convict a medical practitioner under § 841(a)(1),
    the government must prove that (1) the defendant “distributed or
    20
    dispensed a controlled substance,” (2) he “acted knowingly and
    intentionally,” and (3) his “actions were not for legitimate
    medical purposes in the usual course of his professional medical
    practice or were beyond the bounds of medical practice.”                                
    Singh, 54 F.3d at 1187
    (quoting Tran Trong 
    Cuong, 18 F.3d at 1141
    ).
    “[T]here are no specific guidelines concerning what is required
    to support a conclusion that an accused acted outside the usual
    course of professional practice.”                 
    Id. (quoting United
    States v.
    August, 
    984 F.2d 705
    , 713 (6th Cir. 1992)).                     “Rather, the courts
    must engage in a case-by-case analysis of evidence to determine
    whether    a    reasonable     inference         of   guilt    may       be       drawn   from
    specific facts.”        
    Id. (quoting August,
    984 F.2d at 713).
    A    defendant’s        “good   faith”      generally       is      relevant         to   a
    jury’s determination of whether a defendant acted outside the
    bounds    of    accepted     medical      practice     or     without         a   legitimate
    medical purpose.        
    Hurwitz, 459 F.3d at 476
    & 480.                   Accordingly a
    defendant      cannot   be    convicted      “if      he   merely     made         an   honest
    effort to prescribe in compliance with an accepted standard of
    medical   practice.”          
    Id. at 476-77
         (quoting    United           States      v.
    Moore, 
    423 U.S. 122
    , 142 (1975)).                 Good faith in this context is
    an objective rather than subjective standard, meaning that “good
    faith is not merely a doctor’s sincere intention towards the
    people    who    come   to    see    him,    but,      rather,      it    involves          his
    sincerity in attempting to conduct himself in accordance with a
    21
    standard of medical practice generally recognized and accepted
    in the country.” 
    Id. at 478
    (quoting United States v. Hayes, 
    794 F.2d 1348
    , 1351 (9th Cir. 1986)).
    Brown contends that he should be subjected to a different
    standard because, as a nurse practitioner in Virginia, he was
    authorized to prescribe only under supervision of a licensed
    physician.     Brown fails to articulate, however, the manner in
    which   the   elements    of    the    distribution        offense     should   be
    different for a nurse practitioner as opposed to a physician.
    Indeed, the district court’s jury instructions set forth the
    government’s burden of proof in terms which apply equally to
    physicians    and   others     “licensed    and    authorized     to    prescribe
    controlled    substances.”       (JA   818).       In   accordance      with    the
    standards set forth above, the district court instructed the
    jury that the government must prove beyond a reasonable doubt
    “that   the   defendant   or    defendants’       action   were   not    for    the
    legitimate medical purposes in the usual course of professional
    practice or were beyond the bounds of medical practice.”                        (JA
    817).   Under these instructions, Brown, as a nurse practitioner,
    is held to the same standard of practice as any other licensed
    medical practitioner, namely the requirement to make an “honest
    effort to treat his patients in compliance with the accepted
    standards of medicine.”         (JA 818) (emphasis added).              Brown did
    22
    not object to these instructions. Nor does he contend on appeal
    that the jury instructions were improper.
    Brown    contends,        nonetheless,         that    the      government     was
    required to introduce evidence that his conduct fell below a
    standard of practice for a nurse practitioner, as opposed to the
    standard of practice for a physician, and that the government
    did not do so in this case.                 We are not persuaded by Brown’s
    premise   that       the   standard    of   medical        practice     should   be   any
    different      for     a    nurse     practitioner         licensed      to   prescribe
    medication and a physician licensed to prescribe medication.                           In
    both instances the prescription – whether by a physician or a
    nurse practitioner – must be within the scope of usual medical
    practice and for a legitimate purpose.                       A nurse practitioner,
    like any other medical practitioner, “is not free deliberately
    to disregard prevailing standards of treatment.”                         
    Hurwitz, 459 F.3d at 479
    (quoting United States v. Vamos, 
    797 F.2d 1146
    , 1151
    (2d Cir. 1986)); see also United States v. Lawson, 
    682 F.2d 480
    (4th    Cir.   1982)       (in   affirming       §    841(a)(1)        convictions     of
    pharmacist, stating that one element is “whether [the defendant]
    knew   that    the     purported      prescription         was   not    issued   for    a
    legitimate medical purpose or in the usual course of medical
    practice”).
    Brown    also       suggests    that      if    a     supervising      physician
    authorizes a nurse practitioner to write prescriptions and does
    23
    not revoke his ability to prescribe, then there is no basis to
    convict    him     absent       further      evidence             that    he        “endeavored     to
    conceal his prescriptions” or that the nurse and the physician
    “are    deliberately           working        in           concert       to     issue       unlawful
    prescriptions.”             (Brown Br. at 34).                According to Brown, in the
    absence of such evidence of concealment or collusion, a nurse
    practitioner       should       be    insulated             from    culpability           because    a
    physician        has    agreed       to     allow           the    nurse       practitioner         to
    prescribe medication.                Such a bright-line rule, however, runs
    counter to this court’s prior recognition that “there are no
    specific guidelines concerning what is required to support a
    conclusion that an accused acted outside the usual course of
    professional practice,” and the court “must engage in a case-by-
    case    analysis       of    evidence       to     determine          whether         a   reasonable
    inference of guilt may be drawn from specific facts.”                                     
    Singh, 54 F.3d at 1187
    (quotations omitted).
    Contrary        to     Brown’s       suggestion,              although         evidence      of
    concealment or collusion with a physician may be sufficient to
    convict     a     nurse       practitioner             of     unlawful         distribution         of
    controlled substances, such evidence is not necessary to secure
    a conviction.          A reasonable jury may conclude based upon other
    facts     and     circumstances           that         a     nurse       practitioner        issued
    prescriptions          knowing       that    they          were     not       for    a    legitimate
    purpose     or    were       outside        the        usual       course      of     professional
    24
    practice.           In this case, for instance, Brown was not merely
    acting    in     isolation,           solely       under        direction       of    a     licensed
    physician.          Rather, as we will detail below, this case involved
    more     complex       relationships           between           a     non-physician          office
    manager       who     took       an    active           role     in     treatment         decisions
    (Boccone),      other       medical      and       non-medical          employees         (including
    Brown),       and    supervising         physicians             who    did    not     maintain       a
    constant presence in the practice (including Drs. Currier and
    Match).
    With     these     considerations            in     mind,       we    now     turn    to    the
    sufficiency of the evidence supporting the individual counts of
    distribution         of   controlled       substances,               beginning       with    Brown’s
    convictions.
    a.
    Brown        was     convicted          of        three         counts        of     unlawful
    distribution of a controlled substance, oxycodone, corresponding
    to   prescriptions          he    wrote    for          three    patients:         King     Dao,    on
    October 23, 2009 (Count Two); Eric Honesty, on June 7, 2010
    (Count Seven); and Michael Rogers on April 5, 2010 (Count Nine).
    Brown concedes that the government proved the first two elements
    of each of these offenses — that Brown distributed oxycodone,
    and that he did so knowingly and intentionally to each of these
    patients.       He contends, however, that the government failed to
    prove     the       third     element          —        that     the     prescriptions            were
    25
    illegitimate or outside the course of professional practice.                              We
    disagree.
    The    government      introduced         several    categories          of   evidence
    supporting    the      third   element     of    conviction      on   each         of   these
    charges.     First, as to each charged distribution, the government
    introduced       evidence      that      Boccone      directed        the          treatment
    prescribed.      In particular, with respect to Dao, on October 23,
    2009, Boccone entered a treatment note stating:
    New regiment [sic] as follows: Opiate Tollerant [sic].
    Discontinue all medications.     60mg Oxsycontin [sic]
    for long acting releif [sic] from chronic intractable
    pain to be taken with 40mg Oxycontin to establish
    baseline releif [sic]. 40mg to be taken 3 hours after
    taking a 60mg.     1 10mg methadone to be taken at
    bedtime   to  affect  the   CYP1A4   Enzyme  decreasing
    metabolising of oxycontin to increase duration.     2ml
    liquid Oxicodone for immediate releif [sic] in AM when
    awakening.
    (JA 2731).       Earlier in the same day, Boccone entered further
    notes regarding Dao’s pain symptoms.                     (JA 3030).           At the same
    time,    Brown    is    listed     as    medical      provider      in    the       medical
    records, and Brown issued a prescription for 40 milligram and 60
    milligram OxyContin pills that same day.                     (JA 3030-3033; 2671-
    2675).
    With respect to Honesty, on June 7, 2010, Boccone entered a
    treatment     note       stating        that     he      restored        an        OxyContin
    prescription:
    Restored Oxycontin to 3 tablets every 4 hours while
    awake from 10:00AM until 10:00PM with one additional
    26
    at last dosage to total 13 tabs per day; Resored [sic]
    Roxicodone to 3 tabs q6 with one additional HS, Zanax
    at 1mg q12, cymbalta 60mg 1 tab q 12, changed
    neurontin to 600 q6.
    (JA 2136).       That same day, Brown issued four prescriptions for
    Honesty,     including     two     separate         80     milligram          oxycodone
    prescriptions.     (JA 1974-1981).
    Finally, with respect to Rogers, in an entry in Rogers’s
    medical records made by Boccone on February 12, 2009, Boccone
    increased    Rogers’s     oxycodone     regimen       to    the   level       that    it
    remained until Rogers’s death, on April 8, 2010.                             (JA 1715-
    1717).        He   also   opined   in    a    treatment       note         that    Rogers
    “[r]equires    physical     therapy,”        “has    developed         a    very     high
    tolerance to opiates,” and has a spinal cord injury with “no
    alternative   treatment.”        (JA    1781).      On    April   5,       2010,   Brown
    issued prescriptions in the amount set by Boccone on February
    12, 2009.    (JA 1700-1702, 1715).
    In light of the above, we reject Brown’s contention that
    the record contains no evidence showing that Boccone directed
    Brown to write any of the three charged prescriptions. While
    Brown cites lack of testimony by the patients themselves as to
    who   directed     the    prescriptions,       the        documentary        evidence,
    combined    with   testimony     regarding          the    working         relationship
    between Boccone and Brown, amply supports the inference that
    Boccone directed the prescriptions.
    27
    Moreover,         we    reject        Brown’s      contention          that,    even     if
    Boccone   directed           the   prescriptions,            the    government       failed    to
    present      any        evidence        that          such     conduct           rendered     the
    prescriptions illegitimate. The statute itself provides that it
    is    illegal      for        a    non-licensed          individual           to     distribute
    controlled      substances         —    or    to      direct       or    cause     distribution
    thereof. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2. In addition,
    Dr. Hamill-Ruth opined that it is “[a]bsolutely not appropriate”
    for   a   non-licensed             person        to    direct,           oversee,    or     guide
    prescriptions for narcotic pain medications.                                (JA 530; see JA
    3828).    Thus, the jury properly could infer that if Boccone
    directed or caused the prescriptions to be issued, this itself
    established, or was one factor supporting, the conclusion that
    the prescriptions were illegitimate.                         See United States v. Orta-
    Rosario, 469 Fed. Appx. 140, 144 (4th Cir. 2012) (in affirming
    convictions        of    doctor        and    employee         of       online     prescription
    service, noting factors relevant to guilt, including “permitting
    non-medical     personnel          to    write        prescriptions         with     pre-signed
    bland prescription forms”); United States v. Mahar, 
    801 F.2d 1477
    , 1487 (6th Cir. 1986) (“[T]hat patients were regularly sold
    controlled      substances         .    .    .     selected         by    non-physician       lay
    employees of the Clinic would further support a finding that
    controlled substances were issued outside the usual course of
    medical practice and for no legitimate medical purpose.”).
    28
    Apart    from    evidence     of    Boccone’s      involvement       in    the
    individual   prescriptions       underlying     the    distribution       charges,
    the government also introduced evidence that Boccone influenced
    the entire course of treatment of each patient, both in the way
    he managed his office and in his interactions with individual
    patients.    For example, Dao testified that at one point he was
    arrested at Chantilly Specialists for prescription fraud, and he
    was unable to take his prescription with him at the time of
    arrest.      After    spending    78    days    in    jail,    he    returned    to
    Chantilly Specialists to pick up his prescription, and he was
    provided     his     prescription       without       seeing        any    medical
    practitioner, in the presence of Boccone, Boccone’s wife, and
    another individual.       (JA 391).          Honesty agreed with Brown and
    Boccone to return 80 mg OxyContin pills to Boccone and Brown.
    (JA 336-337). 3      And, as noted above, Boccone set the level of
    3
    Brown contends the evidence is insufficient to link him to
    the agreement with Honesty, because in some of his testimony
    Honesty   references   Brown   and   Boccone   together,  without
    identifying specific activity by Brown.     He also contends this
    agreement is irrelevant to the charged prescriptions.     Viewing
    the testimony in this manner, however, neglects to draw
    inferences in favor of the government and impermissibly invites
    the court to weigh the evidence. Honesty’s testimony provides a
    basis upon which to infer an unlawful agreement between Honesty,
    Brown, and Boccone, which is one factor among several showing
    that treatment of Honesty was outside the scope of medical
    practice, and that Brown knew that the specific charged
    prescription, as part of that course of treatment, was
    illegitimate.
    29
    medication for Rogers that lasted from 2009 to his death in
    2010.    (JA 1715-1717).
    In addition to evidence of Boccone’s involvement in medical
    decisions, the government introduced further evidence that the
    entire course of treatment of patients Dao, Honesty, and Rogers,
    was     illegitimate    and     outside     the    usual     course       of   medical
    practice.     This evidence took the form of indicia or red flags
    of diversion, addiction, and abuse, as highlighted in the report
    and testimony of Dr. Hamill-Ruth.
    In particular, Dao received prescriptions for large volumes
    of pain medication, continuing without change over an extended
    period of time, without referrals for alternative treatment or
    therapy     for      “underlying         medical    issues     that        are     very
    concerning.”           (JA    549,       3833).      Diagnostic        tests       were
    insufficient “to support the diagnosis of intractable pain,” and
    provided “no good indication to be prescribing this man chronic
    opiates as far as their documentation is concerned.” (JA 549).
    Additional red flags included multiple early refills, multiple
    calls, sporadic visits, and drug screens, all as indicia that
    prescriptions are fueling a drug addiction.                        (JA 550-551). A
    pharmacy    called     in    2010   to   report    early   refill     requests,     an
    incident in which Dao was with another person who attempted to
    pay with counterfeit money, and Dao’s provision of medication to
    another    person.      (JA    2710,      3833).     On    March    23,    2011,    Dao
    30
    pleaded      guilty    to    prescription          fraud     based    on     prescriptions
    received from Chantilly Specialists. (JA 2659).                              Dao met with
    Brown for two appointments after returning from jail following
    his arrest for prescription fraud. (JA 389, 391, 2700-2705).                              As
    noted above, Dao picked up prescriptions that had been filled on
    the day of his arrest, without any medical examination. (JA 390-
    391).     Dao received prescriptions despite having drug screens on
    several occasions that were positive for use of cocaine and/or
    negative for proscribed medications (JA 386, 3205, 3834).
    Honesty      testified       that     he    never     received        any    physical
    examination        while    being     seen    at    Chantilly        Specialists.        (JA
    330).        According      to   Dr.       Hamill-Ruth,         “there       was    no   good
    indication       in   the     record       for      prescribing        him     significant
    medication doses,” and “no outside documentation at the initial
    visit.”       (JA     547).      Boccone          and   Brown    increased         Honesty’s
    prescriptions over time, up to around 680 to 700 narcotic pain
    pills per month.           (JA 335, 338).          Three times when he attempted
    to   take    the    medications       as     written    in    his    prescriptions,       he
    overdosed, and he informed Boccone and Brown of the overdoses.
    (JA 338-339).         Further red flags included loss of medications;
    lack of documentation of injuries and outside medical visits;
    lack    of   documentation       of    prescriptions          from    other        providers;
    escalating         aberrant      behavior          including        threats        prompting
    referrals      to      psychiatry          for      “substance        abuse,        bipolar”
    31
    disorders; lack of evidence of compliance with referrals; and
    drug tests negative for prescribed medications.                        (JA 1990-1991,
    2152, 3834-3836).        In sum, Dr. Hamill-Ruth opined “his behavior
    really was very significant for abuse, and it was unconscionable
    to continue to support his addiction problem without sending him
    for appropriate referral.”            (JA 548).
    Indicia of addiction and abuse as to Rogers included that
    he    drove    a    long       distance        from     Tennessee          to    receive
    prescriptions,      he   was     treated       with    pain    medication       over    an
    extended period from 2007 to his death in 2010, and additions
    and   adjustments     were     made    without        any    rationale       noted.    (JA
    3827).     Additional      red    flags    include          frequent    phone     calls,
    requests      for   early       refills,        self-escalation            of    dosing,
    inconsistencies     in     reporting      thefts,       issues      with     receipt    of
    medication, and needing prescriptions overnighted to his home in
    Tennessee, positive drug screens and an absence of documentation
    as to pharmacies used.            (JA 3828-3829).             Further, Dr. Hamill-
    Ruth opined that it was inappropriate and “flagrantly dangerous”
    to prescribe Rogers the combinations of medications he received
    without    adequate      documentation.          (JA        537).       As      for    the
    prescriptions issued by Brown days before Rogers’s death, Dr.
    Hamill-Ruth noted that prescriptions issued for “excessive doses
    of multiple medications” raise “significant concerns” in light
    of Rogers’s affliction with pneumonia.                 (JA 540-541).
    32
    Considering all of the above, including the evidence of
    Boccone’s involvement, in conjunction with indicia of diversion,
    addiction, and abuse, in the medical record of these patients,
    the evidence was sufficient for the jury to conclude that Brown
    knew or had reason to know that prescriptions he issued were for
    an illegitimate purpose or were not within the scope of usual
    medical practice.
    Brown       raises      several       additional       challenges       as    to     the
    evidence supporting the distribution counts of conviction, which
    we find unavailing.               First, following on his earlier argument
    regarding        the      legal    standard,        Brown        suggests   that     expert
    testimony by Dr. Hamill-Ruth was not sufficient to convict him
    because it addressed only a physician’s standard of practice and
    did   not     address        whether    his    own     treatment       fell    below      the
    standard     of       a   nurse   practitioner.             As    discussed    above,      we
    disagree that the standard of practice for a nurse practitioner
    differs from that of a physician.                     Moreover, as to sufficiency
    of her report and testimony, Dr. Hamill-Ruth did not limit her
    opinion     to    the      standard    of    practice       for     physicians,     to    the
    exclusion        of       other   licensed         practitioners       such    as        nurse
    practitioners.            Indeed, she testified as to “the practice . . .
    in the field of pain management,” and guidelines that “medical
    providers who practice in the field of pain management can rely
    on[.]”      (JA 526) (emphasis added).                She specifically noted that
    33
    nurse practitioners, as well as physicians, are authorized to
    prescribe       controlled          substances       in     Virginia.      (JA         530).
    Accordingly, we reject Brown’s contention that Dr. Hamill-Ruth’s
    testimony was insufficient to prove that Brown’s conduct fell
    below the standard of medical practice.
    Brown     next        contends     that    his      treatment      of     patients
    underlying      the     charged     offenses,       including    Dao,    was     in     good
    faith because these patients had legitimate medical problems.
    The existence of legitimate medical problems, however, does not
    compel a finding that a practitioner prescribed medications in
    good faith.       Indeed, in Singh, the court upheld convictions of a
    physician      for    unlawful      distribution      of    controlled     substances,
    even though patients to which medications were prescribed had
    numerous       physical       ailments.       For    example,     one     patient       was
    diagnosed with “lumbar disc problems and seizures.”                            
    Singh, 54 F.3d at 1188
    .         Based on the opinion of an expert witness, the
    court noted that continued prescriptions of addictive drugs to
    this    patient,        in     light    of   indicia       of   alcohol        abuse    and
    recommendations         from    a   psychological         evaluation,   was      “outside
    the scope of a legitimate medical practice.”                    
    Id. In this
    case, as in Singh, patients presented with medical
    problems, including that Rogers had history of a gunshot wound,
    (JA 3827), Dao suffered from “aching low back pain, intermittent
    left L5 radiculitis and tension related neck pain,” (JA 3833),
    34
    and Honesty had hypertension, sleep apnea, asthma, and carpel
    tunnel syndrome. (JA 3834).              Nevertheless, the presence of such
    legitimate medical problems in many respects supported, rather
    than undermined, a determination that prescriptions were issued
    outside the scope of medical practice.
    To     this    end,       Dr.    Hamill-Ruth          identified     a    disconnect
    between the problems presented and the course of treatment.                              For
    Rogers, she noted a lack of documentation regarding the nature
    of   injuries,           and    she    noted        “significant        concerns”        with
    prescribing medication to Rogers, in light of his pneumonia.
    (JA 541, 3827).          For Dao, despite many ailments, Dr. Hamill-Ruth
    noted that he was “not put on an NSAID, sent for PT, or offered
    interventional pain management, any or all of which could have
    helped     more     effectively        manage        his     pain.”           (JA    3833).
    Similarly, for Honesty, “an inadequate exam is documented, and
    it does not support chronic intractable pain,” and “no exam or
    other data” is in the record to support some diagnoses. (JA
    3834-35). Accordingly, the manner in which legitimate medical
    problems    are     addressed,        rather        than    the    existence        of   the
    problems    in     the    first      place,    is    most     probative       to    whether
    prescriptions       are    issued      within       the    usual   scope      of    medical
    practice.    (See JA 527).
    Finally, Brown argues that he acted in good faith because
    supervising doctors and the Virginia Board of Medicine never
    35
    stated his treatment of any patient was improper.                          As discussed
    above, however, the level of supervision Brown received is one
    factor among many bearing on the issue of whether Brown knew
    that prescriptions were issued outside the scope of legitimate
    medical     practice.       While       Brown       contends     that       supervising
    physicians and the Board never criticized his treatment of any
    patient, Brown also points to no evidence that they approved
    specific prescriptions underlying the charged offenses.
    The practice agreement between Brown and Dr. Currier does
    not set forth parameters of supervision or approval of specific
    prescriptions,      nor    does        it    restrict     Brown’s          prescriptive
    authority beyond specifying the types of drugs which Brown may
    prescribe.      Rather,    it     is   a    form     check-box    agreement,      which
    states     simply   that    Brown      is        “authorized     by    this    practice
    agreement”    to    prescribe      multiple         categories        of   Schedule   II
    drugs.     (JA 3763).      A jury reasonably could infer based on this
    practice     agreement     that     Brown         maintained     responsibility       to
    discern that a given prescription was legitimate or issued in
    the course of medical practice. 4
    4
    Because of the limited nature of the agreement in this
    case, we need not address whether conceivably a practice
    agreement could include such restrictions on authority of a
    nurse practitioner, and a physician could exercise such
    oversight over individual prescriptions, to foreclose as a
    matter of law culpability of a nurse practitioner. In this
    manner, we find only theoretical significance in the fact that,
    (Continued)
    36
    Moreover, Dr. Currier, who was supervising physician during
    the time of the charged prescriptions, testified that she did
    not authorize Brown to prescribe medications in the presence of
    red flags such as inconsistent drug tests, lack of treatment
    records, and noncompliant or aberrant behavior.                                (JA 308).      She
    also    testified        that   she     was        not    sufficiently           present      and
    informed of clinical information, nor sufficiently involved in
    treatment decisions, to provide adequate oversight of individual
    patient treatment. (See JA 264-265, 309).
    In    addressing        this     evidence             on     appeal,     Brown       draws
    inferences in favor of the defense rather than the government.
    For    example,     Brown       opines       that        “[g]iven         [their]      practice
    agreement, the fact that Dr. Currier did not expressly authorize
    Mr. Brown’s actions – which is all the transcript shows – was
    tantamount to approval of Mr. Brown’s prescribing practices.”
    (Brown Reply Br. at 6).            Similarly, Brown suggests that the jury
    was    required     to     infer      from     Brown’s             lack   of    training      and
    supervision       that     Brown      believed           in        good   faith       that    the
    prescriptions      he     issued      were     legitimate.                But,    a    contrary
    as Brown notes, Virginia law authorizes a practice agreement to
    “restrict such prescriptive authority as deemed appropriate by
    the physician providing direction and supervision.” (Brown Br.
    at 33, quoting Va. Code Ann. § 54.1-2957.01(A)). It suffices in
    this case that no such restrictions were embodied in Brown’s
    practice agreement.
    37
    inference is also reasonable. In particular, the jury reasonably
    could infer that, in the absence of adequate supervision and
    oversight from Dr. Currier, Brown chose to follow directions of
    Boccone     in        making   the            charged        prescriptions,       including
    prescribing a high volume of medications for as long as patients
    were    willing       to   receive        them,        all     with   knowledge       of     or
    deliberate blindness to the fact that the prescriptions were
    without grounding in legitimate medical practice.
    In sum, substantial evidence supported Brown’s convictions
    for distribution of controlled substances.
    b.
    Turning next to Boccone’s convictions for distribution of
    controlled       substances,        we    conclude        that    the    evidence      amply
    supported    the       conclusion        that        Boccone    knowingly      distributed
    oxycodone        to     six    patients           by     entering       directions          for
    prescriptions in each patient’s medical file on the dates of the
    charged distribution.
    In   particular,        as        we     have    already       noted,    the        jury
    reasonably       could     infer     that        Boccone        directed    the    charged
    prescriptions for other patients Dao, Rogers, and Honesty.                                 In a
    similar manner, the evidence demonstrated that Boccone directed
    the prescriptions for patients Diane Gisin, Linda Mumma, and
    Bryan Anderson (Counts Three, Four and Five).                           Specifically, on
    April 16, 2009, Boccone entered direction in Gisin’s medical
    38
    file     stating            “[m]aintain           current            regiment        [sic],”        and
    physician’s assistant Joe Frazier signed prescriptions including
    Roxicodone 30 mg and other opiate drugs.                                 (JA 2576, 2534).       In a
    medical    record           entry    on     February          5,     2009,     Boccone       directed
    maintenance of an opiate regimen and added prescriptions for
    Mumma.     (JA 3581-3582).                Finally, in a medical record entry on
    August    17,     2009,       Boccone          entered        a     detailed        treatment   note
    including    diagnosis          for       Anderson,           and    directed        four    days   of
    medication, including 80 milligram OxyContin pills.                                   (JA 3933).
    This evidence is sufficient to permit the jury to infer
    that     Boccone        conducted              the        patient        visits       or     directed
    prescriptions       for        each       patient          on      the     date     charged,    thus
    causing,     as         a     non-licensed                individual,          distribution         of
    controlled substances.                See 21 U.S.C. § 841(a)(1); 18 U.S.C. §
    2; see also United States v. Johnson, 
    831 F.2d 124
    , 128 (6th
    Cir.     1987)     (“[T]he           sale        by       a     nonpractitioner            of   bogus
    prescriptions       which           are    in    fact         used       to   obtain       controlled
    substances is tantamount to the distribution of the substances
    themselves        and       hence,        is     properly           punishable        as    unlawful
    distribution of drugs in violation of section 841(a)(1).”).
    Further,     although          additional              evidence        was    not    required,
    Boccone’s convictions were also supported by evidence set forth
    above demonstrating that treatment of patients Dao, Rogers, and
    Honesty,     in    concert           with       Brown,        was     outside       the     scope   of
    39
    legitimate medical practice due to indicia of abuse, addiction,
    and diversion.            In addition, with respect to Gisin, Dr. Hamill-
    Ruth     opined          that     “[p]rescribing         for       this      patient         was
    substandard,”        due    to    inadequate      documentation            and    evaluations
    rendering         prescriptions      outside      the    bounds       of    usual      medical
    care.       (JA 3838).          Mumma also testified that in one instance
    Boccone attempted to treat her for very high blood pressure by
    bringing in during an appointment a “blister pack of medication”
    and directing her to take one. (JA 453). When she refused, he
    called      her    cardiologist       and    introduced        himself       as    “Dr.     Paul
    Boccone.” (JA 454).
    We    have     considered      Boccone’s         arguments      challenging          his
    convictions         for     the      distribution        counts        and        find      them
    unavailing. While Boccone focuses on the lack of evidence that
    he   personally          signed    prescriptions         for    any    of        the   charged
    patients, such arguments do not take into account that Boccone’s
    culpability rests on his conduct in directing or causing the
    charged prescriptions, which, on the basis set forth above, is
    supported by substantial evidence.                   His suggestion that medical
    providers,         and    not     Boccone,    entered        the   directions          in   the
    medical notes as cited above, rests upon drawing inferences from
    circumstantial evidence in favor of the defense rather than the
    government.          Where       Boccone’s    name      is   designated          in    a   timed
    medical entry in the record, the jury reasonably may infer that
    40
    he conducted the medical visit, or participated in it, and then
    entered the text of the entry. Further, Boccone’s contention
    that other providers entered notes using his name is belied by
    the fact that those same medical providers entered their own
    notes in the medical record using their own names.              (See, e.g.,
    JA 1715-1717).      Finally, Boccone’s contentions that treatment of
    the patients in the charged offenses was in fact legitimate fail
    for the same reasons we have rejected Brown’s challenges to the
    convictions. 5
    In sum, we conclude the evidence was sufficient to support
    Boccone’s unlawful distribution convictions.
    2.
    We turn next to appellants’ convictions for conspiracy to
    distribute controlled substances.
    The drug conspiracy statute provides that “[a]ny person who
    attempts   or    conspires   to   commit   any   offense   defined   in   this
    5
    The court is in receipt of a letter submitted by Boccone’s
    counsel post-argument, pursuant to Federal Rule of Appellate
    Procedure 28(j).    Under this subsection of the rule, titled
    “Citation of Supplemental Authorities,” a party may submit such
    a letter only “[i]f pertinent and significant authorities come
    to a party’s attention after the party’s brief has been filed.”
    Fed. R. App. P. 28(j). The submission here, however, does not
    contain pertinent and significant authorities that came to
    Boccone’s attention after his briefs were filed.      Rather, it
    contains citations to the record in reference to points made at
    oral argument. We are thus not obligated to consider this
    letter.   In any event, the information provided in Boccone’s
    letter does not alter the conclusions we reach above.
    41
    subchapter         shall     be     subject     to     the    same      penalties          as      those
    prescribed       for       the    offense,      the    commission            of    which      was     the
    object of the attempt or conspiracy.”                                 21 U.S.C. § 846. To
    convict      a     defendant        of    conspiracy         under          this    statute,          the
    government       must       establish      three       essential            elements:           (1)    an
    agreement to unlawfully distribute controlled substances existed
    between      two      or     more     persons;        (2)     defendants            knew      of      the
    conspiracy; and (3) defendants knowingly and voluntarily became
    a part of this conspiracy.                See 
    Burgos, 94 F.3d at 857
    .
    “[I]t     is    not       necessary      to     prove      a    formal       agreement         to
    establish a conspiracy in violation of federal law; a tacit or
    mutual understanding among or between the parties will suffice.”
    
    McIver, 470 F.3d at 563
      (quotation          omitted).             In     addition,
    “[t]he Government is not required to prove that a defendant knew
    all    his       co-conspirators           or     all        of       the     details         of      the
    conspiracy.”           United States v. Green, 
    599 F.3d 360
    , 367 (4th
    Cir.    2010).         In    the      context         of     unlawful         distribution             of
    prescription          drugs,       conspiracy        may     be   established            where        the
    defendant “tacitly agreed with his patients to provide opioid
    prescriptions without legitimate medical reasons for doing 
    so.” 470 F.3d at 563
    .                  “The government can satisfy the knowledge
    requirement by showing either that Appellant actually knew of
    the    conspiracy,          or     that    he    was       willfully          blind      to     it    by
    42
    purposely      closing       his   eyes       to    avoid   knowing    what       was   taking
    place around him.”           
    Id. (internal quotations
    omitted).
    Much    of      the    same      evidence         supporting       the      individual
    distribution convictions also supports the conspiracy conviction
    in this case.           For example, the treatment of Dao, Rogers, and
    Honesty, as detailed above, provides sufficient evidence of a
    conspiracy      to     unlawfully        distribute         oxycodone,       in     light   of
    Boccone’s      involvement         in   treatment        decisions,       in     conjunction
    with    red    flags    showing        that    their     treatment     was      outside     the
    scope    of     medical       practice.            In   addition,     the       government’s
    evidence       demonstrated        a     conspiracy         extending       in     scope    to
    treatment of other patients, such as Justin McConnell, whose
    treatment      at    the     hands      of    Boccone       and   Brown     was     similarly
    outside the scope of medical practice. From this evidence, a
    jury reasonably could conclude that appellants agreed with each
    other    and    their      patients      to    unlawfully         distribute       controlled
    substances, and each knew of the conspiracy or was “purposefully
    closing his eyes to avoid knowing what was taking place around
    him.”    
    McIver, 470 F.3d at 563
    .
    Moreover, the government introduced further circumstantial
    evidence that appellants entered into an agreement to distribute
    prescriptions        outside       of     medical        practice.          Such     evidence
    includes time limits placed on examinations by Boccone, scarcity
    of physical exams, perfunctory visits for prescription refills
    43
    for large amounts of drugs, Boccone’s presence in examination
    rooms     during   patient    exams     conducted     by     Brown    and   other
    practitioners, close interaction between Boccone and Brown in
    the office, Boccone’s processing of prescriptions and forgery of
    signatures on prescriptions, Boccone’s reference to himself as
    “doctor,” Brown’s conduct in signing prescriptions filled out by
    Boccone or prescriptions in stacks while in exams with other
    patients,    and   patients’       provision    of   gifts   and     services   to
    Boccone and Brown.          (JA 128-29, 132-136, 138-39, 142-43, 165,
    176, 187-88, 223-25, 257, 365, 368, 412-13).
    In sum, considering together the treatment of individual
    patients with evidence regarding the nature of the practice and
    defendants’ role in the practice, sufficient evidence supported
    the conspiracy convictions in this case.
    3.
    Boccone contends the evidence was insufficient to convict
    him of health care fraud.            The government charged Boccone with
    violation of 18 U.S.C. § 1347, on the basis that he submitted a
    claim to Medicare on November 3, 2009, knowing that licensed
    medical    provider   had    not    performed    services,    particularly      in
    treatment of Dianne Gisin, on April 16, 2009.
    The health care fraud statute provides that it is unlawful
    to “knowingly and willfully execute[] . . . a scheme or artifice
    (1) to defraud any health care benefit program; or (2) to obtain
    44
    by means of false or fraudulent pretenses, representations, or
    promises,    any    of     the    money    .    .    .    [of]       any    health       benefit
    program,    in    connection       with    the      delivery         of    or    payment      for
    health care benefits, items, or services . . . .”                                    18 U.S.C. §
    1347(a).    The statute may be violated by a person who obtains
    reimbursement      from     Medicare      by    means      of    false          or    fraudulent
    statements on insurance claims. See 
    McLean, 715 F.3d at 140
    .
    “[T]he   specific        intent    to   defraud          may    be    inferred         from   the
    totality of the circumstances and need not be proven by direct
    evidence.” 
    Id. at 138.
    The    government       introduced         evidence        that       the       person   who
    provided    medical       services      for     Gisin      on    April          16,    2009   was
    Boccone, (JA 2576), whereas the provider billed to Medicare was
    physician’s assistant Joe Frazier.                   (JA 3781-82).              Considered in
    conjunction      with    Gisin’s     testimony           that    Boccone         treated      her,
    this was sufficient for the jury to infer that solely Boccone
    saw Gisin on that date and Frazier did not provide any medical
    services.        Because    Boccone       caused      claims         to    be    submitted     to
    Medicare    falsely        representing          the       provider         who        performed
    services    on     the    date    charged,          Boccone’s         health         care   fraud
    conviction is supported by substantial evidence.
    Boccone argues that Medicare allows submission of a bill
    for a visit with a member of a medical provider’s staff, noting
    for example that Medicare billing code 99211 provides for an
    45
    office      visit     “not   requir[ing]           the    presence       of    a     physician,”
    where       “[u]sually,      the      presenting          problem(s)           are    minimal.”
    (Boccone      Br.    at    51-52).        Notably,        however,       the       billing   code
    submitted to Medicare in this case was 99215, not 99211. (JA
    3781).       In contrast to code 99211, code 99215 is reserved for
    office visits requiring either a “comprehensive examination” or
    “[m]edical decision making of a high complexity,” where “the
    presenting      problem(s)          are       of    moderate        to     high      severity,”
    typically      requiring       40     minutes        spent    face-to-face            with   the
    patient.        See       American        Medical        Assoc.,     Current          Procedural
    Terminology (CPT), 10 (2009 Standard Ed.).                               Here the evidence
    suggests the opposite – that no legitimate medical decisions
    were    made    on     April   16,     2009,        much     less    decisions          of   high
    complexity       or       following       a    comprehensive             examination.        This
    further supports a determination that the bill which Boccone
    submitted in this case included false and misleading information
    regarding the nature of the provider and the services performed.
    In     sum,     Boccone’s       health        care      fraud          conviction      was
    supported by substantial evidence.
    46
    4.
    Boccone     argues   that    the        evidence   was   insufficient   to
    support    his   convictions     for    failure    to   pay   over   employment
    taxes. 6
    Under 26 U.S.C. § 7202,
    Any person required under this title to collect,
    account for, and pay over any tax imposed by this
    title who willfully fails to collect or truthfully
    account for and pay over such tax, shall, in addition
    to other penalties provided by law, be guilty of a
    felony and, upon conviction thereof, shall be fined
    not more than $10,000, or imprisoned not more than 5
    years,   or  both,   together  with   the  costs   of
    prosecution.
    To secure a conviction under this statute for failure to pay
    employment taxes, the government must prove that (1) defendant
    has a duty to withhold and pay over employment taxes for the
    employer, and (2) defendant willfully failed to perform one of
    these tax-related duties.         See United States v. Lord, 404 Fed.
    6
    Boccone also argues that the government failed to charge
    him within a three-year statute of limitations period. Boccone,
    however, waived this argument by not raising it before or during
    trial. See United States v. Williams, 
    684 F.2d 296
    , 300 (4th
    Cir. 1982). Boccone counters that the government itself has
    waived any reliance on waiver by addressing the merits of his
    argument in opposition to Boccone’s post-trial motion for
    acquittal. But, to the extent this court has recognized such a
    “waiver of waiver” argument, it has been in instances of
    government “acquiescence” to the issue being raised on appeal.
    United States v. Metzger, 
    3 F.3d 756
    , 757-58 (4th Cir. 1993).
    The government did not so acquiesce in this case, because it
    raised Boccone’s waiver in opposition to the motion for
    acquittal and raised it again on appeal.
    47
    Appx. 773, 775 (4th Cir. 2010); United States v. Gilbert, 
    266 F.3d 1180
    , 1185 (9th Cir. 2001).
    Here,    the    government       introduced    substantial      evidence      to
    satisfy   both    elements       of     the    offense.   Concerning       Boccone’s
    duties, Boccone admitted to a government special agent that he
    was    responsible       for     withholding       employment     taxes    from     his
    employees and for paying over such withholdings to the Internal
    Revenue Service. (JA 478).               He also had prior experience with
    filing payroll tax forms and remitting employment taxes with his
    former company, Berwyn Mortgage.                   (JA 3958-3968).        Concerning
    Boccone’s failure to pay, Boccone admitted at trial that he was
    aware of the obligation to pay employment taxes withheld, and
    there was no dispute that Boccone failed to pay the taxes due.
    (JA 623, 759).
    Boccone suggests, nonetheless, that his failure to pay was
    not willful because there was no money available to pay them
    when   due.      Contrary       to    Boccone’s    suggestion,     the    government
    introduced      evidence       that   Chantilly     Specialists    had    sufficient
    funds to satisfy the tax obligations or there would have been
    sufficient      funds    had    other    expenditures     not   been     paid.      (JA
    4006-4336).           “The intentional preference of other creditors
    over the United States is sufficient to establish the element of
    willfulness.”         Turpin v. United States, 
    970 F.2d 1344
    , 1347 (4th
    Cir.    1992)    (internal        quotations       omitted).       Even    if     other
    48
    expenditures were necessary for operation of the business, this
    does not undermine a finding of willfulness.                            Indeed, “paying
    wages    and    .   .   .     satisfying    debts      to       creditors   in   lieu   of
    remitting employment taxes to the IRS, constitute circumstantial
    evidence of a voluntary and deliberate violation of § 7202.”
    Lord, 404 F. App’x at 779.
    In sum, the government introduced substantial evidence to
    support the tax law convictions.
    C.
    Boccone argues that the prosecutor improperly commented on
    his veracity during closing argument.                    Boccone did not object to
    the    prosecutor’s         closing     argument    at      trial.      Accordingly     our
    analysis is “confined to plain error review.”                           United States v.
    Woods, 
    710 F.3d 195
    , 202 (4th Cir. 2013). “Under this standard,
    [appellant] must show not only that the district court committed
    an    error    that     was    plain,    but    also     that     the    error   affected
    [appellant’s] substantial rights thereby impacting the outcome
    of his trial.” 
    Id. (internal quotations
    omitted).
    The prosecutor’s argument arose out of testimony by Boccone
    at    trial    regarding       his    provision     of      a    handwriting     exemplar
    during the investigation of the case.                    In relevant part, Boccone
    testified as follows on re-direct examination:
    Q.   Did you go in voluntarily on your own to give
    [Special Agent Walker] handwriting exemplars?
    A. Yes, I did.
    49
    Q.   Have you gotten any results?
    A.   No.
    (JA 659-60) (emphasis added).               During defense counsel’s closing
    argument, counsel reminded the jury of this testimony, stating
    as follows:
    Mr. Boccone took the stand.     Told you that he went
    voluntarily on his own to Special Agent Walker, and
    then for two to three hours give them handwriting
    samples.    Apparently they were thinking he forged
    prescriptions.   Now think about it. . . .   Who wakes
    up and walks off to the police station to give a
    handwriting sample if they know that they’ve been
    forging prescriptions?    He goes in there to give a
    handwriting sample.
    (JA 781) (emphasis added).
    After    this      argument    concluded,       the    government     asked   to
    correct the record in rebuttal to reflect that the handwriting
    exemplar in fact “was done pursuant to a grand jury subpoena.”
    (JA    792).        Counsel      for    Boccone        thereupon       requested     an
    opportunity to clarify himself “in respect to the handwriting
    exemplar,      it   was    pursuant    to     a    grand     jury   subpoena,”   which
    request the court allowed. (Id.).                    At that point, counsel for
    Boccone concluded his argument by stating to the jury: “[W]ith
    respect to the handwriting exemplars, the grand jury issued a
    subpoena for Mr. Boccone to give his handwriting exemplars, and
    he went and gave the handwriting exemplars pursuant to the grand
    jury   subpoena     to     Special    Agent       Walker.”      (JA   793)   (emphasis
    added).
    50
    Subsequently,     upon      rebuttal,    the    prosecution     stated     as
    follows to the jury:
    Ladies and gentlemen, we now know that Paul Boccone
    gave a handwriting exemplar pursuant to a grand jury
    subpoena when he told you during his sworn testimony
    that it was voluntarily. What else in Paul Boccone’s
    testimony under oath is false, ladies and gentlemen?
    (JA 811).
    Boccone suggests that this argument was improper because
    (1) Boccone in fact testified truthfully that he voluntarily
    gave a handwriting exemplar, and (2) the prosecutor’s statement
    constitutes an improper expression by the prosecutor as to the
    veracity of a defense witness.
    With    respect   to   the    first     challenged     statement      by   the
    prosecutor, there was no impropriety in reminding the jury that
    Boccone gave the exemplar “pursuant to a grand jury subpoena”
    whereas in his testimony he stated that “it was voluntarily.”
    (JA   811).     This    is   consistent     with     the   correction    made    by
    Boccone’s own counsel. (JA 793). It is also consistent with the
    evidence.      In particular, Boccone gave the exemplar after the
    investigating attorney informed Boccone’s counsel that the grand
    jury had issued a subpoena for the defendant’s handwriting. (JA
    938).   Boccone was in fact served with the subpoena.                   (JA 940).
    While Boccone points out on appeal that the subpoena was not
    served on Boccone until he arrived at the police station, it is
    nonetheless     accurate     to    state    that     the   exemplar   was    given
    51
    “pursuant to a grand jury subpoena.”                (JA 811).          Accordingly,
    the first challenged statement in the prosecutor’s argument was
    not improper.
    The    second        challenged    statement      in        the   prosecutor’s
    argument,   by     contrast,    may    have   exceeded   the       bounds    of   fair
    advocacy.    This court has “recognized that it is highly improper
    for the government to refer to a defense witness as a liar.”
    United States v. Moore, 
    11 F.3d 475
    , 481 (4th Cir. 1993); see,
    e.g., 
    Woods, 710 F.3d at 202
    (prosecutor improperly stated that
    defendant    “lied        . . . under     oath   when       he     testified      this
    morning”). Although the prosecutor did not expressly call the
    defendant      a     “liar,”     the     prosecutor’s        argument        clearly
    communicated to the jury the prosecutor’s view that defendant
    lied under oath.
    We    need     not    decide,    however,   whether         the   prosecutor’s
    argument constituted error.            Even assuming that it did, and the
    error was plain, we conclude the error did not affect Boccone’s
    “substantial       rights.”     
    Id. “When the
      evidence        of   guilt   is
    overwhelming and a perfect trial would reach the same result, a
    substantial right is not affected by a particular error. 
    Id. (internal quotations
    omitted).           In undertaking this analysis, we
    have considered the following well-established factors:
    (1) the degree to which the prosecutor’s remarks have
    a tendency to mislead the jury and to prejudice the
    accused; (2) whether the remarks were isolated or
    52
    extensive; (3) absent the remarks, the strength of
    competent proof introduced to establish the guilt of
    the accused; and (4) whether the comments were
    deliberately   placed  before    the jury to  divert
    attention to extraneous matters.
    
    Id. (quotations omitted).
    Here,     accepting         that        the    challenged       argument      by   the
    prosecution had a tendency to mislead the jury and prejudice
    Boccone, the remarks nonetheless were made in conjunction with
    an    express        correction      by       Boccone’s       own     counsel    regarding
    Boccone’s testimony.           Thus, even if the prosecution had not made
    the challenged argument, the jury had an independent basis to
    question      whether       Boccone       had       been   fully      truthful      in   his
    testimony.          In addition, while the remarks came at a prominent
    point    at    the    culmination        of    the    closing       argument,    they    were
    brief relative to the length of the argument as a whole.
    Further,        the    government’s           evidence    against       Boccone    was
    overwhelming         and    was    supported          by   multiple         categories    of
    evidence,       each        independently            supporting       the     convictions,
    including medical records demonstrating Boccone’s involvement in
    treatment of patients and the nature of the prescriptions he
    directed,      testimony      from    patients,         and    testimony      and    records
    regarding      Boccone’s       office         practices.            Even    assuming     that
    Boccone       had     not    forged       prescriptions,            sufficient      evidence
    demonstrated that Boccone conspired to and directed distribution
    of controlled substances outside the bounds of medical practice.
    53
    Finally, in light of the correction by defense counsel,
    there    is    no    indication    that   the    comments       were    deliberately
    placed before the jury to divert attention from the evidence in
    this case.
    In       sum,   although      part   of     the     challenged     prosecution
    argument may have been improper, any error resulting therefrom
    does not warrant reversal of Boccone’s conviction.
    D.
    Boccone and Brown challenge the district court’s sentencing
    determination.        We   address    first      their     contention     that     the
    district court failed to adequately explain the sentence given.
    “We review a sentence for abuse of discretion.”                            United
    States v. Bell, 
    667 F.3d 431
    , 440 (4th Cir. 2011). As part of
    this review, we must
    “ensur[e]  that   the  district  court   committed  no
    significant procedural error, such as failing to
    calculate (or improperly calculating) the Guidelines
    range, treating the Guidelines as mandatory, failing
    to consider the § 3553(a) factors, selecting a
    sentence based on clearly erroneous facts, or failing
    to adequately explain the chosen sentence—including an
    explanation for any deviation from the Guidelines
    range.”
    United    States      v.   Lynn,   
    592 F.3d 572
    ,     575    (4th    Cir.    2010)
    (quoting Gall v. United States, 
    552 U.S. 38
    , 51 (2007)).
    With respect to the explanation provided by the district
    court, “[r]egardless of whether the district court imposes an
    above, below, or within-Guidelines sentence, it must place on
    54
    the record an individualized assessment based on the particular
    facts of the case before it.” 
    Bell, 667 F.3d at 442
    (quotations
    omitted).      “The    explanation    must   be    sufficient   to    allow    for
    meaningful appellate review, such that the appellate court need
    not guess at the district court’s rationale.”                   
    Id. (internal quotations
    omitted).         This court previously has observed that
    “[w]ithout     an    affirmative     showing      the   information    [in     the
    presentence report] is inaccurate, the court is free to adopt
    the findings of the [presentence report] without more specific
    inquiry or explanation.”          United States v. Terry, 
    916 F.2d 157
    ,
    162 (4th Cir. 1990) (internal quotations omitted).
    In setting forth the reasons for the sentence in this case,
    the district court stated as follows with respect to Boccone:
    All right.   Well, Mr. Boccone, I find the guideline
    factors in this case to be properly assessed at a
    range of 360 months to life.      That because of your
    financial condition, the imposition of any fine or
    cost is not warranted.    But considering your age and
    prior record and the nature of this offense, I find
    that a sentence somewhat below the guideline range
    would be appropriate. It will be the sentence of the
    Court that as to Counts, 1 to 5, 7, and 9, you be
    committed to the custody of the Attorney General to
    serve a term of 180 months . . . .
    (JA   1124).        The   court   imposed    lesser     concurrent     terms   of
    imprisonment for the remaining counts of conviction.                  For Brown,
    the district court stated only:
    All right. Well, I find the guideline factors in this
    case to be properly assessed at a range of 188 to 235
    months.    I also find because of your financial
    55
    condition, Mr. Brown, that the imposition of any fine
    or cost is not warranted.      And in considering the
    factors under Section 3553, which I must, considering
    your – the facts of this case and the extent of your
    involvement, I find that a sentence below the low end
    of the guideline range would be appropriate. It will
    be the sentence of the Court, as to Counts, 1, 2, 7,
    and 9, you be committed to the custody of the Attorney
    General to serve a term of 60 months . . . .
    (JA 1103-04).
    The       district   court’s   explanation       for   the    sentence     was
    lacking in several respects.              In particular, the district court
    failed     to    explain   adequately     the    application   of   each    of   the
    statutory sentencing factors, and to provide “an ‘individualized
    assessment’ based on the particular facts of the case before it”
    of   the    basis    for   the   substantial      downward    variance     imposed.
    
    Bell, 667 F.3d at 442
    .            The district court’s cursory reference
    to statutory factors, with mention of “age and prior record and
    the nature of this offense” for Boccone, and “the facts of this
    case and the extent of . . . involvement” for Brown, (JA 1103,
    1124), does not explain how these factors for each defendant
    apply to warrant a downward variance, leaving us to “guess at
    the district court’s rationale.”               
    Bell, 667 F.3d at 442
    .
    In     addition,      while    we    can     glean     from   the     court’s
    explanation that the district court adopted in toto the findings
    and conclusions in the presentence report, the district court’s
    failure to explain why it did so is procedurally unreasonable.
    The district court did not discuss the objections and arguments
    56
    raised by appellants prior to and during the sentencing hearing,
    including     their       specific     contentions       that        the    drug     quantity
    calculations        and    corresponding           offense     level        determinations
    contained     in    the     presentence        reports     were      not     correct,          and
    Boccone’s objection to application of a sentencing enhancement.
    (See JA 1057, 1096, 1117, 4434, 4384).
    This   court       has   not     previously       decided       how        much    “more
    specific inquiry or explanation” is required, as suggested by
    
    Terry, 916 F.2d at 162
    , when a district court adopts findings in
    a     presentence     report         over     objections       and     arguments          by     a
    defendant.         See United States v. Montes-Pineda, 
    445 F.3d 375
    ,
    380 (4th Cir. 2006) (“[A] district court’s explanation should
    provide some indication . . . that the court considered . . .
    the    potentially        meritorious        arguments    raised       by    both        parties
    about    sentencing.”).         We    need     not    decide    this       question       here,
    however. As set forth below, assuming the district court did not
    sufficiently        explain      the        sentence    imposed,           this    error       is
    harmless under the circumstances of this case.
    “[P]rocedural errors at sentencing are routinely subject to
    harmlessness        review.”          
    Lynn, 592 F.3d at 576
           (quotations
    omitted).     When the court commits a procedural error in failing
    to explain a sentence given, the government may avoid reversal
    if the error “did not have a substantial and injurious effect or
    influence on the” result and the court can “say with . . . fair
    57
    assurance that the district court’s explicit consideration of
    [the defendant’s] arguments would not have affected the sentence
    imposed.”   
    Id. at 585
    (quotations and citations omitted).
    In applying this harmless error review, we find persuasive
    the court’s treatment of a procedural error in United States v.
    Cox, 460 Fed. App’x 248, 250 (4th Cir. 2012).          There, the court
    reasoned:
    In this case, the district court erred by providing no
    explanation for the length of the active prison term
    it imposed upon Cox. We conclude, however, that the
    Government met its burden to show that this error was
    harmless. Because Cox received a substantial downward
    variance, we conclude the district court's inadequate
    explanation ‘did not have a substantial and injurious
    effect or influence on the result’ of the sentencing
    proceeding. Furthermore, Cox's arguments in support of
    a 120–month    sentence  were   without  legal   merit,
    allowing us to conclude with ‘fair assurance that the
    district court's explicit consideration of those
    arguments  would   not  have   affected  the   sentence
    imposed.’
    
    Id. (quoting Lynn,
    592 F.3d at 585).
    In   this   case,   as   in   Cox,   because   appellants   received
    significant downward variances, the district court’s failure to
    adequately explain application of the sentencing factors “did
    not have a substantial and injurious effect or influence on the
    result” of the sentencing proceeding.           
    Lynn, 592 F.3d at 585
    (internal   quotations    omitted).       In   addition,   the   district
    court’s failure to set forth reasons for adopting the guidelines
    range set forth in the presentence report, including failure to
    58
    address      appellants’     arguments    as    to   the    calculation    of   the
    guidelines         range,   was   harmless     because     these   arguments    are
    without merit, as we set forth below. As such, we may conclude
    with       “fair    assurance     that   the     district     court’s     explicit
    consideration of those arguments would not have affected the
    sentence imposed.” 
    Lynn, 592 F.3d at 585
    (internal quotations
    omitted). 7
    Accordingly, we turn next to address appellants’ arguments
    as to the guidelines range calculation.
    1.
    Appellants first argue, as they did before the district
    court, that the court incorrectly calculated the drug quantity
    7
    We find inapposite prior cases, including those cited by
    appellants, in which the court has remanded for resentencing
    despite the district court’s award of a downward variance.    In
    those cases, unlike here, the court remanded after finding clear
    error in the calculation of a guidelines range. See, e.g.,
    United States v. Gomez, 
    690 F.3d 194
    , 203 (4th Cir. 2012)
    (remanding where district court failed to properly calculate
    guidelines range);   United States v. Napan, 484 F. App’x 780,
    781-82 (4th Cir. 2012) (remanding where the district court
    misapplied an enhancement, despite award of downward variance).
    Nor does this case involve a variance without explanation in the
    direction opposite to that requested by the appellant. See,
    e.g., 
    Lynn, 592 F.3d at 582
    (remanding where district court
    provided “no explanation at all for a substantially above-
    Guidelines sentence”); United States v. Engle, 
    592 F.3d 495
    , 503
    (4th Cir. 2010) (remanding where the government appealed
    downward variance imposed without sufficient explanation).
    59
    used to determine their base offense level under the sentencing
    guidelines.
    We review “the district court’s calculation of the quantity
    of drugs attributable to a defendant for sentencing purposes for
    clear error.”           United States v. Slade, 
    631 F.3d 185
    , 188 (4th
    Cir. 2011). In other words, the court must be “left with the
    definite and firm conviction that a mistake has been committed.”
    United States v. Stevenson, 
    396 F.3d 538
    , 542 (4th Cir.2005).
    “The     Government       must      prove    by       a    preponderance        of   the
    evidence the amount of controlled substances attributable to a
    defendant.”        United States v. Carter, 
    300 F.3d 415
    , 425 (4th
    Cir. 2002). In calculating drug quantity, “a sentencing court
    may give weight to any relevant information before it, including
    uncorroborated          hearsay,       provided         that       the     information       has
    sufficient      indicia     of       reliability        to       support      its    accuracy.”
    United States v. Crawford, 
    734 F.3d 339
    , 342 (4th Cir. 2013)
    (quoting United          States      v.    Wilkinson,        
    590 F.3d 259
    ,    269   (4th
    Cir.2010)).
    In   the    context      of    a    drug    conspiracy,            a   “defendant     is
    responsible       not    only     for      his    own    acts,       but      also    for   ‘all
    reasonably        foreseeable          acts’       of     his       co-conspirators           in
    furtherance of the joint criminal activity.”                             
    Slade, 631 F.3d at 188
    .        A   defendant       is    “accountable           for     all      quantities     of
    contraband        with    which       he    was     directly         involved         and   all
    60
    reasonably foreseeable quantities of contraband that were within
    the scope of the criminal activity that he jointly undertook.”
    
    Bell, 667 F.3d at 441
    (quoting U.S.S.G. § 1B1.3 cmt. n.2).
    According to the presentence report adopted by the district
    court,     Brown     was   responsible        for    the    equivalent     of   12,453
    kilograms      of    marijuana,   based       upon   100%    of    the    prescription
    amount provided to patients Honesty, Dao, Rogers, and McConnell
    after he commenced work at Chantilly Specialists in July, 2009.
    (JA 4438).      Boccone was responsible for the equivalent of 18,155
    kilograms of marijuana, representing the medications prescribed
    to Honesty, Dao, and Rogers for the entirety of their care,
    under    the    direction    of   Boccone.           Where    these      drug   weights
    exceeded an equivalent of 10,000 kilograms of marijuana, both
    Boccone and Brown were subjected to a base offense level of 36.
    See U.S.S.G. § 2D1.1.
    The    evidence       presented     by    the    government      at    trial    was
    sufficient      to    establish   that    Boccone      and    Brown      conspired     to
    unlawfully distribute controlled substances to Honesty, Dao, and
    Rogers, outside the bounds of medical practice and not for a
    legitimate      medical     purpose    during        the    time   that    they      were
    involved    with      treatment   of   these        patients.       Whether     or   not
    Boccone or Brown individually saw these patients during each
    visit to Chantilly Specialists is not dispositive of the drug
    quantity calculation where they each knew, or reasonably should
    61
    have known, that the entire course of treatment was beyond the
    scope of legitimate medical practice. See 
    McIver, 470 F.3d at 563
    .    The    illegitimacy        of   the    entire       course    of    treatment     is
    supported not only by the report and testimony by Dr. Hamill-
    Ruth, but also by Boccone’s role in directing the treatment as a
    non-medical professional.
    In     addition,      although         McConnell’s        treatment         was   not
    addressed      in    the   report       of    Dr.    Hamill-Ruth,      the     government
    offered       sufficient      evidence        at     trial     that        Brown    treated
    McConnell outside the scope of legitimate medical practice, in
    disregarding many of the same indicia of abuse and diversion
    present with Honesty, Dao, and Rogers. For example, McConnell
    did not provide prior treatment records upon beginning treatment
    at    Chantilly      (JA   184),    Brown      treated      McConnell       without      ever
    having given him a physical exam (JA 189), and his prescriptions
    increased significantly over time leading to an addiction. (JA
    190, 193).          In addition, Brown made untoward physical contact
    and    personal      calls    to    McConnell        that    impacted       the    treating
    relationship.        (JA     192-93).          Boccone      also     was     involved     in
    directing prescriptions.                (JA 197-98).         The presentence report
    noted all these facts, in addition to others obtained based upon
    an investigative interview report, regarding adjustments made by
    Brown in prescriptions and Brown’s promise to keep prescribing
    him 30 milligram oxycodone pills.                   (JA 4410).
    62
    In sum, the drug weight calculation by the district court
    properly      was    supported      by   an      aggregation         of    quantities      of
    controlled substances distributed to Honesty, Dao, Rogers, and
    McConnell, where treatment of these patients was outside the
    scope of legitimate medical practice.
    Appellants argue on appeal that the district court’s drug
    calculations were erroneous because the court did not follow the
    calculation methods set forth by the Fourth Circuit in Bell.
    There,      defendants         pleaded      guilty        to        offenses     including
    conspiracy to possess with intent to distribute oxycodone, which
    they obtained through prescriptions while patients at a pain
    management center.            
    Bell, 667 F.3d at 434
    & 435.                      This court
    held   that    the    district      court     did   not    adequately          explain    the
    basis for the sentence, particularly drug quantity, where the
    district      court         based   drug      quantity          on       the   amount      of
    prescriptions received by each patient.                        
    Id. at 439-441.
               The
    court noted that, generally, “[w]here there is no evidence that
    any    of   the     drugs    obtained    by      members       of    a    conspiracy     were
    obtained      or     possessed      legally,        all    reasonably          foreseeable
    quantities possessed . . . may be considered ‘relevant conduct’
    attributable to that defendant.”                  
    Id. at 442.
                But, in “a case
    involving a valid prescription,” the court noted,
    if . . . the government wishes to use the total
    quantity prescribed to one or more conspiracy members
    as evidence of the quantity of ‘contraband ... within
    63
    the scope of the [conspiracy],’ it must also provide
    evidence, and the district court must make a finding,
    of something more — for example . . . that the
    conspiracy actually distributed a particular amount[,]
    [or] that the person who was prescribed the drug
    lawfully kept and consumed only a portion (or none) of
    the prescribed amount . . . . ”
    
    Id. at 443
       (quoting         U.S.S.G.      §    1B1.3    cmt.    n.2).     Appellants
    contend the district court erred by failing to make any such
    findings in this case.                We disagree.
    Bell is inapposite for several reasons.                             First, in Bell,
    “there      [was]        no     dispute     that    [defendant]       received      her     pills
    using a valid prescription issued to her by physicians at a
    single institution.”                   
    Id. at 444
    (emphasis added).                    Just the
    opposite       was       true    in   the    present      case,    where    the     government
    introduced evidence demonstrating that the prescriptions issued
    to     Dao,     Honesty,           Rogers,         and   McConnell        were     not      valid
    prescriptions.                While    appellants        contend    that    these      patients
    made    use    of        some    or   most    of    their    prescriptions        to     provide
    relief      for      their        medical      conditions,         this    fact     does     not
    transform an otherwise unlawful prescription issued outside the
    scope of medical practice into a valid one.
    Second, the defendants in Bell pleaded guilty on the basis
    that    they,       as     patients,        distributed      oxycodone      that     they     had
    already received from a pain management center.                                  By contrast,
    appellants here were convicted of issuing prescriptions outside
    the    scope        of    medical      practice.            Whether      patients      in   Bell
    64
    actually     ingested     the    medication        could    be     determinative        to
    whether they in fact distributed the medication to others. See
    
    id. at 443.
    Here, by contrast, whether the patients actually
    consumed     the    prescription        drugs   in    question       is       not   itself
    determinative of whether the prescriptions were made outside the
    scope of medical practice.               Indeed, evidence that the patients
    in this case ingested excessive quantities of pain medication
    over an extended time period was itself an indicia of addiction
    further demonstrating illegitimacy of the prescriptions.
    Finally, unlike in Bell, the district court in this case
    adopted the guidelines range in the presentence report that was
    based on a detailed drug quantity calculation as set forth in
    the presentence report.             In contrast, the district court in Bell
    picked a round number below that calculated in the presentence
    report, without offering any specific explanation for why that
    number was chosen.            
    Id. at 444
    .          Accordingly, the presentence
    report in Bell provided no basis, as it did in this case, for
    the drug quantity calculation by the district court.
    Based on the foregoing, we reject appellants’ argument that
    we   must    vacate     the     sentence     for     further      fact    finding      and
    explanation        regarding      the      calculation       of      drug       quantity.
    Although     the    district     court     erred     in    failing       to   adequately
    explain     its    reasons    for    the   sentence       given,     this      error   was
    harmless where we can determine based on the presentence report
    65
    adopted     by   the   court    that       there    was    no    clear       error    in     the
    calculation of drug quantity.
    2.
    Boccone     challenges        the       four-point       enhancement          under     §
    3B1.1(a), for his role as a leader in the conspiracy.                             The court
    “review[s] a district court’s decision to apply a sentencing
    adjustment based on a defendant’s role in the offense for clear
    error.”     United States v. Sayles, 
    296 F.3d 219
    , 224 (4th Cir.
    2002).
    To qualify for a four-level increase under § 3B1.1(a) of
    the    Sentencing      Guidelines,         a    defendant       must     have     been       “an
    organizer or leader of a criminal activity that involved five or
    more   participants      or    was     otherwise      extensive.”             §   3B1.1(a).
    “Factors     the   court      should       consider   include          the    exercise       of
    decision making authority, the nature of participation in the
    commission of the offense, the recruitment of accomplices, the
    claimed right to a larger share of the fruits of the crime, the
    degree of participation in planning or organizing the offense,
    the nature and scope of the illegal activity, and the degree of
    control and authority exercised over others.”                           
    Id. Application Note
    4.
    In   applying    this    enhancement,          we    look       to    “whether        the
    defendant’s role was that of an organizer or leader of people,
    as opposed to that of a manager over the property, assets, or
    66
    activities     of   a   criminal        organization.”        United      States    v.
    Llamas, 
    599 F.3d 381
    , 390 (4th Cir. 2010) (internal quotations
    omitted).      The enhancement “is appropriate where the evidence
    demonstrates     that     the       defendant    controlled   the   activities      of
    other participants or exercised management responsibility.”                        
    Id. (internal quotations
    omitted).
    For example, in United States v. Ellis, 
    951 F.2d 580
    (4th
    Cir. 1991), the court examined application of the enhancement to
    a scheme to corruptly secure the passage of legislation in West
    Virginia.      Although        the    corrupt     scheme   involved      only   four
    participants, the court upheld the application of the § 3B1.1(a)
    enhancement      because        the     unknowing     services      of    lobbyists,
    legislators, and their staffs advanced the criminal activity.
    
    Ellis, 951 F.2d at 585
    .       The    court    observed      that   “[i]n
    considering     whether        an    activity    is   ‘otherwise    extensive,’      a
    court may consider, as it did here, ‘all persons involved during
    the course of the entire offense,’ even the ‘unknowing services
    of many outsiders.’”           
    Id. (quoting §
    3B1.1, cmt. n.2).
    In this case, the evidence at trial strongly supported a
    determination that Boccone was both the organizer and the leader
    of the charged conspiracy to distribute controlled substances.
    Although the presentence report does not identify five or more
    67
    participants in the conspiracy, 8 there is ample evidence that the
    criminal activity was extensive.              As noted in the presentence
    report:
    The   defendant   was   the  president  of   Chantilly
    Specialists and the owner from December 2005 until
    March 2010.   He ran Chantilly Specialists’ day-to-day
    operations, hired and directed employees, approved
    payments by the company, signed payroll checks, and
    made financial decisions on behalf of the company.
    Additionally, the evidence revealed Boccone, despite
    having no medical training or knowledge, saw patients
    and made decisions regarding the prescription of
    Schedule II controlled substances.
    (JA 4362).       In addition, although many employees of Chantilly
    Specialists      may   not   be    culpable    enough   to   be    considered
    “participants” in the conspiracy, they were still involved as
    unwitting providers of support to the conspiracy in allowing
    prescription of medications to patients over an extended period
    of time without a legitimate medical purpose and outside the
    usual    scope   of    medical    practice.     Likewise,    the   number   of
    patients involved, whether those patients were aware of their
    abuse or unwittingly receiving illegitimate prescriptions, also
    8
    The presentence report identifies only three other
    participants in the criminal conspiracy, Brown, Dr. Anthony
    Fasano, and physician’s assistant Joe Frazier.      Although the
    government suggests that patients such as Honesty and Dao also
    were participants, the presentence report concludes that Boccone
    did not direct or manage their activities.      In light of our
    conclusion above that the criminal activity was “otherwise
    extensive,” we need not address here whether the criminal
    activity “involved five or more participants.” § 3B1.1(a).
    68
    augmented the scope and significance of the illegal activity
    under   leadership     of   Boccone.        Accordingly,   because    Boccone
    exhibited authority and control over both office employees and
    patients in furtherance of his criminal activity, the district
    court correctly applied the four-level enhancement for Boccone’s
    role as a leader in the conspiracy.
    In sum, where appellants have not raised any meritorious
    arguments impacting the guidelines calculation, and where the
    district court awarded a substantial downward departure from the
    guidelines range, we find harmless the district court’s error in
    failing to explain adequately the sentence given.
    III.
    Based   on      the    foregoing,      appellants’    convictions    and
    sentences are
    AFFIRMED.
    69
    

Document Info

Docket Number: 12-4949, 12-4952

Citation Numbers: 556 F. App'x 215

Judges: Flanagan, Louise, Niemeyer, Wynn

Filed Date: 2/20/2014

Precedential Status: Non-Precedential

Modified Date: 8/31/2023

Authorities (36)

United States v. Victoria Vamos , 797 F.2d 1146 ( 1986 )

United States v. Llamas , 599 F.3d 381 ( 2010 )

United States v. Basham , 561 F.3d 302 ( 2009 )

United States v. Henry Tresvant, III , 677 F.2d 1018 ( 1982 )

United States v. Ram Singh , 54 F.3d 1182 ( 1995 )

United States v. Stephen Jerome Williams , 684 F.2d 296 ( 1982 )

United States v. Ricardo U. Alerre, United States of ... , 430 F.3d 681 ( 2005 )

United States v. Leon Wilbur Terry , 916 F.2d 157 ( 1990 )

Henry Thomas Turpin v. United States , 970 F.2d 1344 ( 1992 )

United States v. Alfred M. Lawson , 682 F.2d 480 ( 1982 )

United States v. Slade , 631 F.3d 185 ( 2011 )

united-states-v-gregory-lamont-wilson-aka-nice-united-states-of , 484 F.3d 267 ( 2007 )

united-states-v-keisha-carter-united-states-of-america-v-jerry-lee-mcrae , 300 F.3d 415 ( 2002 )

United States v. Frank Kahled Burgos, United States of ... , 94 F.3d 849 ( 1996 )

United States v. Green , 599 F.3d 360 ( 2010 )

United States v. Randy Metzger , 3 F.3d 756 ( 1993 )

United States v. Leonard Andrew Sayles, Jr, A/K/A Leno, ... , 296 F.3d 219 ( 2002 )

United States v. Tran Trong Cuong, M.D. , 18 F.3d 1132 ( 1994 )

United States v. Bell , 667 F.3d 431 ( 2011 )

united-states-v-william-eliot-hurwitz-american-academy-of-pain-medicine , 459 F.3d 463 ( 2006 )

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