United States v. Sharp , 400 F. App'x 741 ( 2010 )


Menu:
  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-4932
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    JOHN C. SHARP,
    Defendant - Appellant.
    Appeal from the United States District Court for the Northern
    District of West Virginia, at Elkins. Irene M. Keeley, District
    Judge. (2:07-cr-00019-IMK-JSK-1)
    Argued:   September 22, 2010                 Decided:   November 5, 2010
    Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and
    James C. DEVER III, United States District Judge for the Eastern
    District of North Carolina, sitting by designation.
    Affirmed by unpublished per curiam opinion.
    ARGUED: Paul Harris, Wheeling, West Virginia, for Appellant.
    Alan McGonigal, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
    West Virginia, for Appellee.      ON BRIEF: Joseph M. Spivey,
    Lexington, Virginia; Joseph A. Wallace, Elkins, West Virginia,
    for Appellant. Betsy C. Jividen, Acting United States Attorney,
    Charleston, West Virginia, Randolph J. Bernard, Assistant United
    States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
    West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    2
    PER CURIAM:
    Dr. John C. Sharp (“Sharp”) appeals his convictions upon
    twenty-nine     counts   of   health   care   fraud,    in   violation    of   
    18 U.S.C. § 1347
    .      On appeal, Sharp alleges numerous errors, which
    this Court has construed 1 as including, but not limited to: that
    the district court abused its discretion by allowing certain
    statistical evidence at trial and by allowing testimony from a
    non-physician medical billing and coding expert, that Sharp was
    deprived   of     his    right    to    testify    on    his    own      behalf,
    prosecutorial misconduct, that certain counts in the indictment
    were time-barred, and that § 1347 was inapplicable.                   For the
    following reasons, we affirm the district court’s judgment.
    1
    Recounting the issues on appeal has proven challenging, as
    the arguments are difficult to discern from Sharp’s briefs.
    Sharp has also violated Federal Rule of Appellate Procedure
    28(a)(9)(B) by failing to include an applicable standard of
    review for any of the issues he raises.    However, we note that
    during oral argument counsel conceded that the Government’s
    proposed standards of review are accurate.
    Although Sharp failed to satisfy the mandates of Rule 28,
    which in many instances may result in dismissal of the appeal,
    see, e.g., Harrelson v. Lewis, 
    418 F.2d 246
    , 247 (4th Cir.
    1969), this Court has a “measure of discretion . . . whereunder
    it may consider an appellant’s claim of error, even despite its
    inadequate assertion, especially when the pertinent record
    appears fully to be before the court, and the controverted
    questions have actually been argued.” Indemnity Ins. Co. of N.
    Am. v. Pioneer Value Sav. Bank, 
    343 F.2d 634
    , 643 (8th Cir.
    1965).    We exercise that discretion in this case with the
    admonition to Sharp’s counsel that they should take greater care
    in future appeals.
    3
    I.
    Sharp was a doctor of osteopathic medicine and licensed to
    practice in the state of West Virginia.                      He operated a general
    family practice medical clinic under the name Pocahontas Medical
    Clinics (“PMC”).
    Sharp was enrolled as a provider with Medicare, Medicaid,
    and the West Virginia Workers’ Compensation Program (“WVWC”).
    These third party payers pay claims using a national billing
    coding    practice     based       on   the       Physicians’   Current      Procedural
    Terminology       (“CPT”)    system,      which       is    published   in    the    AMA
    Current Procedural Terminology Manual (“CPT Manual”).                          The CPT
    Manual provides codes for each of the services provided to the
    program’s beneficiaries by the provider, with descriptions of
    each.     The codes are meant to account for the length of the
    doctor’s visit with the patient, the complexity involved in the
    medical decision making, and the patient’s medical history.
    Each of the counts against Sharp charged that he knowingly
    and     fraudulently      misused       the       billing   codes.      The    charges
    represent three general schemes: (1) the fraudulent misuse of
    so-called “prolonged services” codes, which are codes that are
    used    for   a   visit     that    requires         face-to-face    time     with   the
    patient that is longer than the typical time spent rendering
    that type of procedure or service; (2) “upcoding,” or submitting
    4
    claims   for    a    “higher”      level   service    than      the   one   actually
    rendered; and (3) billing for services not rendered.
    During trial, the Government called two expert witnesses
    whose testimonies are relevant to this appeal.                        The first was
    Betty Stump (“Stump”), a medical coding and billing expert.                         In
    sum, Stump testified that she reviewed the office visit progress
    notes maintained by Sharp and determined that Sharp’s billings
    were not supported by the documentation.                   The Government also
    called Dr. Klaus Miescke (“Miescke”), a statistician.                        Because
    Sharp submitted over 15,000 claims to the third party payers
    during the relevant time period, the Government asked Miescke to
    “select a statistically valid random sample” of the claims to
    determine the estimated total amount of loss to Medicare and
    Medicaid. (Appellee’s Br. 11).
    At the conclusion of trial, the jury returned a verdict
    convicting     Sharp    on   all    counts,    and   he   was    sentenced    to    36
    months’ imprisonment.
    Sharp moved for a new trial, or in the alternative, for a
    judgment of acquittal, alleging multiple errors which included
    ineffective assistance of counsel, that certain counts of the
    superseding          indictment      were      time-barred,           prosecutorial
    misconduct, that 
    18 U.S.C. § 1347
     was inapplicable to worker’s
    compensation programs, that the district court erred by allowing
    Miescke’s      and     Stump’s      testimonies,      insufficiency         of     the
    5
    evidence,    that   the       district    court   erred   by    not   including   a
    proposed     jury   instruction,         and    challenges     to   several    trial
    rulings.     After holding a post-trial hearing, the district court
    denied Sharp’s motion in a written order.
    Sharp     noted      a     timely     appeal,     and     this    Court    has
    jurisdiction over the appeal pursuant to 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    (a).
    II.
    A.
    Sharp    argues   that      the     district    court   erred    by   allowing
    certain expert testimony at trial; namely, that Miescke’s use of
    statistical extrapolation to estimate loss was allowed in error,
    and that Stump’s testimony was allowed in error because she is
    not a physician. 2
    This Court reviews a district court’s evidentiary rulings,
    including rulings on the admissibility of expert testimony, for
    abuse of discretion. Gen. Elec. Co. v. Joiner, 
    522 U.S. 136
    ,
    2
    In his brief, Sharp originally frames these issues as
    alleging that the “Government failed to meet its burden by not
    providing expert testimony from a physician,” (Appellant’s Br.
    1), and that “[i]ntroduction of evidence contained in paragraphs
    10, 11 and 12 of the Superseding Indictment were unduly
    prejudicial because statistical evidence is not appropriate at
    trial.” (Appellant’s Br. 2). We have reframed the issues in an
    attempt to make sense of Sharp’s convoluted opening brief while
    endeavoring to sufficiently address the substance of his claims.
    6
    141-42 (1997).        “The question of whether expert testimony is
    admissible is within the sound discretion of the trial judge,
    and    appellate     courts    normally       defer   to    the     trial    judge’s
    decision.” Persinger v. Norfolk & W. Ry. Co., 
    920 F.2d 1185
    ,
    1187 (4th Cir. 1990).
    1.
    Before trial, Sharp moved to exclude Miescke’s testimony,
    arguing     during    a   pre-trial       Daubert     hearing       that     “it    is
    inappropriate at the count phase for there to be extrapolation
    testimony that goes to the amount of the loss. . . . [T]hat is a
    sentencing issue, if we ever get there . . . .” (J.A. 422).                        The
    district court considered the issue and decided to allow the
    testimony.
    Sharp raised the issue again in his motion for a new trial
    or    for   acquittal.        The    district     court    held    that,    “[a]fter
    weighing the parties’ arguments, [the district court] has no
    trouble concluding that Dr. Miescke’s statistical testimony was
    properly admitted, . . . and survives the defendant’s challenge
    under Federal Rule of Evidence 403 because its probative value
    substantially outweighed any unfair prejudice to the defendant.”
    (J.A. 323).
    Although    Miescke’s        statistical    evidence       would    also    have
    been appropriate during the sentencing phase of the trial, we
    7
    find that the district court did not abuse its discretion by
    allowing the testimony during trial. See United States v. Rosin,
    
    263 Fed. Appx. 16
    , 21 (11th Cir. 2008) (unpublished) (mentioning
    the use of similar testimony during trial).                         First, we note that
    Miescke “provide[d] a valid foundation” for his conclusions by
    explaining how he reviewed the claims, the statistical methods
    he used, and how he arrived at his proposed estimate of loss.
    Cooper v. Smith & Nephew, Inc., 
    259 F.3d 194
    , 200 (4th Cir.
    2001); see Fed. R. Evid. 702.                       Indeed, Sharp does not contest
    Miescke validly qualified as an expert witness nor does Sharp
    contend Miescke applied statistically invalid methods. 3
    Furthermore, Miescke’s testimony was relevant pursuant to
    Federal Rule of Evidence 402; it gave the jury context as to the
    extent      of   the    alleged     loss,      and    conducting      testimony     as   to
    approximately          15,000    claims       of    fraud   would    have    been   overly
    burdensome.            Nor    was      the    testimony      improperly       prejudicial
    pursuant         to    Federal      Rule       of     Evidence      403,     particularly
    considering that there was overwhelming evidence of guilt as to
    each       count.      More     importantly,         Miescke     never     opined   as   to
    Sharp’s      actual     guilt     or    the    existence       of   fraud.    See   United
    3
    In fact, during the Daubert hearing defense counsel agreed
    that “[w]e don’t have a problem conducting the cross-examination
    at this stage with the statistician coming forward and saying
    this is what I did; this is how I arrived at this random sample
    . . . .” (J.A. 423).
    8
    States v. Sdoulam, 
    398 F.3d 981
    , 990 (8th Cir. 2005) (“[The
    expert   statistician]           made      no        statement        regarding      the
    mathematical probability that [the defendant] was guilty of the
    crimes charged.”).
    Moreover,       we   can    analogize       Miescke’s       testimony      to   the
    methods used to determine total drug amounts in drug trafficking
    cases, which, while often conducted during the sentencing phase,
    have at times been testified to during trial. See, e.g., United
    States v. Tran, 
    519 F.3d 98
    , 106 (2d Cir. 2008); Sdoulam, 
    398 F.3d at 989-90
    ; United States v. Royal, 
    87 Fed. Appx. 892
    , 894
    (4th Cir. 2004) (unpublished); United States v. Maceo, 
    873 F.2d 1
    , 6-7 (1st Cir. 1989).
    Finally,    defense        counsel    had       the   opportunity     to     cross-
    examine Miescke and thus was able to challenge Miescke’s method
    of analysis or his conclusions.                 Ultimately, it is the role of
    the jury to arrive at its own conclusions as to the credibility
    of the experts and the weight to give their testimony.                               See
    Maceo, 
    873 F.2d at 7
     (“It is the jury’s role to determine the
    credibility     of    witnesses      and       the    weight     to    accord     their
    testimony.      After     full    cross-examination,           the     jury   had    the
    choice whether to trust the testimony presented.”).                       On balance,
    the district court’s ruling was thus an appropriate exercise of
    its discretion.
    9
    2.
    Sharp   also   moved   to   exclude   Stump’s   proposed   testimony,
    arguing during the Daubert hearing that, although “[s]he can
    make a judgment as to whether or not the documentation supports”
    the code used, (J.A. 508), “she cannot render an opinion as to
    whether or not a particular medical decision should have been
    labeled low, moderate, high in terms of complexity . . . . Only
    a physician can determine that.” (J.A. 506).           The district court
    denied the motion, finding that
    a coding expert, such as Ms. Stump, routinely
    determines whether services billed by a provider are
    appropriately coded and if a provider documents a
    certain level of medical decision making, then the
    documentation is factored into the coding and billing
    decisions and I don’t believe that this testimony will
    confuse the jury.   I think it will be helpful to the
    jury.
    (J.A. 510).
    Sharp raised the issue a second time in his motion for a
    new   trial   or   for   acquittal.    In   the   district   court’s   order
    denying the motion, the court found that
    [t]he issues in this case did not involve questions of
    medical necessity, but rather alleged that Dr. Sharp
    had submitted claims for payment for services he had
    never rendered, or had sought reimbursement for higher
    levels of service than he had actually provided.    In
    similar health care fraud cases, coding experts have
    routinely testified about whether services a provider
    billed were appropriate. . . .
    Because this case did not raise issues of medical
    necessity or any other clinical issue requiring a
    physician’s testimony, and because the use of a coding
    expert was appropriate, . . . the Court rejects
    10
    Sharp’s contention that the government was required to
    provide expert physician testimony to prove health
    care fraud . . . .
    (J.A. 325-26).
    On appeal, Sharp reiterates this argument.                         In support,
    Sharp cites several cases from other courts of appeals which he
    contends stand for the proposition that physician testimony is
    necessary to prove coding or billing fraud, including United
    States v. Wexler, 
    522 F.3d 194
     (2d Cir. 2008), United States v.
    Bek, 
    493 F.3d 790
     (7th Cir. 2007), and others.                      However, these
    cases are clearly distinguishable from the case at bar.
    The   Second    Circuit       held    in   Wexler,      a    distribution     of
    controlled    substances      and    health      care   fraud      case,    that   the
    expert testimony of a physician expert “regarding the standard
    of care . . . was properly received by the District Court as
    relevant to the question of Wexler’s good faith in prescribing
    the   controlled      substances       that      were   the       subject    of    the
    indictment.” Wexler, 
    522 F.3d at 204
     (emphasis added).                       In Bek,
    another     case   dealing     with        the   distribution       of     controlled
    substances and health care fraud, the Seventh Circuit held that
    the jury could not assess whether Bek’s treatment of a patient
    was “within the normal course of professional practice” without
    medical     records   or     expert     testimony       as    to    the     patient’s
    “condition or Bek’s treatment of her.” 
    493 F.3d at 799
     (internal
    quotations omitted).
    11
    However,        in   the   case    at    bar     neither      clinical     decision
    making     nor      appropriate      standards          of    care    were   at      issue.
    Instead, the question was whether Sharp knowingly used incorrect
    codes    for     the    services     he    claimed       he    provided.        As    Stump
    testified,
    as a coder or an auditor I’m not making any decisions
    about the treatment plan for the patient; I’m just
    looking to see what did the doctor document; what did
    he write down that the patient’s problem is; what did
    he write down that his treatment plan is going to be.
    What did he write down about when he wants to see the
    patient back.  What did he write down about possible
    risks to the patient.     I don’t question what the
    medical plan was; I simply evaluate it to determine
    where it falls in the scope of severity for assigning
    a code.
    (J.A. 1163).         Medical billing and coding experts have been used
    for this purpose without dispute in the Fourth Circuit.                               See,
    e.g., United States v. Janati, 
    374 F.3d 263
    , 271-72 (4th Cir.
    2004) (noting that medical coding experts are used “to determine
    whether . . . documentation supports . . . billings under [the]
    CPT”).
    Finally, we observe that during cross-examination defense
    counsel questioned Stump about her status as a “coder” who is
    “not    [a]    clinician[]        [and    that]      determinations       regarding     the
    propriety of medical decision making or a patient’s clinical
    severity      are   omitted       from    the       coding    process.”   (J.A.      1625).
    Stump concurred that she does “not make clinical decisions” and
    agreed with defense counsel’s statement that she is “not [a]
    12
    clinician[].” (J.A. 1626).                  Thus, the argument Sharp makes here
    was before the jury and the jury properly performed its duty to
    “weigh the evidence and the credibility of each expert.” Mosser
    v. Fruehauf Corp., 
    940 F.2d 77
    , 83 (4th Cir. 1991) (internal
    quotations omitted).
    Consequently,        as   the    district        court    appropriately        found,
    “all the cases Sharp cites to support his argument that the
    government        must    present       physician        expert    testimony         involved
    disputed questions of ‘medical necessity.’                             By their nature,
    these    are      clinical    cases     which,         unlike    the   instant       case,   do
    require the testimony of an expert health care provider.” (J.A.
    326).        Thus, the district court did not abuse its discretion in
    permitting Stump’s testimony.
    B.
    Sharp next alleges that he was deprived of his right to
    testify on his own behalf, either as a result of ineffective
    assistance on the part of his counsel, or due to the district
    court’s failure to sua sponte conduct an on the record colloquy
    with Sharp to obtain a waiver of his right to testify.
    At    a   post-trial       hearing,           Sharp   testified       that    he     had
    planned to take the stand during trial, and that none of his
    lawyers “s[a]t down with [him] and [went] through an analysis .
    .   .    [of]     the    risk     of    .    .    .    testifying,      the    benefit        of
    13
    testifying, risk of not testifying, benefit of not testifying.”
    (J.A.    3700).       Although   Joel     Hirschhorn     (“Hirschhorn”),    lead
    trial counsel for Sharp, admitted that he was not sure whether
    he said the “magic words,” he was sure that he had discussions
    with    Sharp   about    whether     he   would   testify,    and   that   Sharp
    “concurred in [his] decision.” (J.A. 3815).
    The district court found that “I don’t have a circumstance
    here where I believe I had to get an on the record waiver of the
    right to testify because I didn’t have any language or conduct
    from    Dr.   Sharp   that   would   indicate     that   he   was   desirous   to
    testify and that desire was being contravened by his attorneys.”
    (J.A. 3864).      The district court also found:
    I don’t think that it’s credible to believe that Dr.
    Sharp was unaware of his lawyers’ strategic opinion
    about the wisdom of him taking the stand.
    . . . .
    [I]t is difficult, if not impossible, for this Court
    to believe that a man of Dr. Sharp’s experience and
    intellect would not have questioned why no one was
    preparing him for testimony the next day.
    . . . .
    Dr. Sharp had an ample opportunity between the close
    of the evidence . . . [and] closing arguments . . . to
    tell [his attorneys] that he felt he’d been denied
    what he had expected, which was the right to testify.
    . . . .
    So, on balance, when I weigh this evidence, there
    is a complete lack of support from the totality of
    that evidence for Dr. Sharp’s recollection as to how
    this was handled.
    (J.A. 3866-71).
    14
    In its order denying Sharp’s motion for a new trial or for
    acquittal, the district court adopted these previous findings,
    and further found that “there was no agreement between Sharp’s
    trial counsel and the government to deprive Sharp of his right
    to testify.” (J.A. 310).
    This      Court    reviews      legal       issues    de    novo     and     factual
    findings       under     a   clear        error    standard.      United      States    v.
    Pettiford, 
    612 F.3d 270
    , 275 (4th Cir. 2010).
    1.
    This      Court    construes        Sharp’s    allegation        that   his    trial
    counsel “violated West Virginia Rules of Professional Conduct"
    as   an   attempt       to   make    an    ineffective      assistance        of   counsel
    argument. See Sexton v. French, 
    163 F.3d 874
    , 881 (4th Cir.
    1998).     However, “[t]he rule in this circuit is that a claim of
    ineffective assistance should be raised in a 
    28 U.S.C. § 2255
    motion    in    the     district     court    rather       than   on   direct      appeal,
    unless    the    record      conclusively         shows   ineffective      assistance.”
    United States v. Williams, 
    977 F.2d 866
    , 871 (4th Cir. 1992).
    Because we find that it does not conclusively appear from the
    record    that    Sharp’s      counsel      was    constitutionally        ineffective,
    this Court will not consider Sharp’s ineffective assistance of
    counsel claim.
    15
    However, even assuming arguendo that we could consider this
    claim on appeal, this Court finds that the district court did
    not clearly err in making the well-reasoned and detailed finding
    that it was “not credible” that Sharp was “unaware” of his right
    to testify on his own behalf or of the strategic decision not to
    testify, and that there was a “complete lack of support from the
    totality of that evidence for Dr. Sharp’s recollection as to how
    this was handled.” (J.A. 3870).
    2.
    Sharp also urges this Court to adopt “a rule that in cases
    such as the one at bar, the trial court itself is required to
    engage in an on-the-record colloquy with defendants when they
    elect to rest their case without testifying,” (Appellant’s Br.
    13), and to find that the district court failed in this new
    duty.
    Although,    of    course,     the    right     to   testify    on    one’s   own
    behalf “is one of the rights that ‘are essential to due                          process
    of law in a fair adversary process,’” Rock v. Arkansas, 
    483 U.S. 44
    , 51 (1987) (quoting Faretta v. California, 
    422 U.S. 806
    , 819
    n.   15   (1975)),      this   Court   and      the   majority       of    our    sister
    circuits    have   clearly      held   that      “[t]o     waive     the    right   [to
    testify], all the defendant needs to know is that a right to
    testify    exists,”     and    the   district    court      need   not     advise   the
    16
    defendant of the right nor obtain a waiver.                            United States v.
    McMeans, 
    927 F.2d 162
    , 163 (4th Cir. 1991); see also United
    States     v.    Richardson,      
    195 F.3d 192
    ,    197-98    (4th    Cir.       1999);
    United States v. Ortiz, 
    82 F.3d 1066
    , 1070-71 (D.C. Cir. 1996);
    United States v. Pennycooke, 
    65 F.3d 9
    , 11-12 (3d Cir. 1995)
    (holding        that    a     “direct        colloquy”        may     be     required         in
    “exceptional, narrowly defined circumstances”); United States v.
    Brimberry, 
    961 F.2d 1286
    , 1289-90 (7th Cir. 1992); Siciliano v.
    Vose, 
    834 F.2d 29
    , 30 (1st Cir. 1987).
    The holding in McMeans has not been overruled, altered, or
    limited by the subsequent holding in Sexton, contrary to Sharp’s
    suggestion.         In considering the question of “who should bear the
    burden of ensuring that the defendant is informed of the nature
    and existence of the right to testify,” the Sexton Court noted
    that   the      McMeans      Court’s    holding       on    this    point    was       “perhaps
    unwise[].” 
    163 F.3d at 881
    .                  Nevertheless, the Sexton Court held
    that       “trial      counsel,        not     the       court,      has     the        primary
    responsibility         for    advising        the    defendant        of    his       right   to
    testify,”       and    thus    “the     burden      of     ensuring    that       a    criminal
    defendant is informed of the nature and existence of the right
    to testify rests upon trial counsel.” 
    Id. at 882
    . 4
    4
    We note that Sharp specifically admitted at the post-trial
    hearing that he did know of his right to testify during the
    trial:
    (Continued)
    17
    Therefore, because the holdings of McMean and Sexton are
    unequivocal on this issue, the question of whether this Court
    should   adopt   Sharp’s    proposed     “new    rule”     is    foreclosed    and
    cannot be overruled by this panel. See Mentavlos v. Anderson,
    
    249 F.3d 301
    , 312 n.4 (4th Cir. 2001).
    C.
    Sharp     next   makes    three        allegations     of     prosecutorial
    misconduct;      first,    that   the        Government     elicited      “false
    testimony”     from   a    witness,     Lois     Workman        (“Workman”),   by
    instructing her to only answer questions using the responses
    “yes” or “no;” second, that the Government improperly misstated
    the evidence; 5 and third, that the Government improperly exceeded
    Q: Now you said that it was your understanding
    throughout the whole trial, from beginning to end,
    that you would eventually testify, is that right?
    A: That’s correct, yes sir.
    Q: Okay. Why did you think that?
    A: I just knew that’s a fact, that I would testify in
    my defense. There was never any question about it.
    (J.A. 3712).
    5
    Although Sharp makes the bare allegation that the
    Government “misstated the evidence,” he makes no substantive
    argument in his brief supporting this proposition.     Sharp has
    again run afoul of Federal Rule of Appellate Procedure 28, which
    “requires that the argument section of an appellant’s opening
    brief must contain the appellant’s contentions and the reasons
    for them, with citations to the authorities and parts of the
    (Continued)
    18
    the appropriate scope during its rebuttal argument by mentioning
    certain “altered records.”
    In its order denying Sharp’s motion for a new trial or for
    acquittal, the district court found that Workman
    did not answer only “yes” or “no” to questions asked
    of her, but provided detailed answers throughout her
    testimony. Moreover, . . . the portions of Workman’s
    testimony characterized in her affidavit as “not
    accurate” were not material to the charges against
    Sharp. Accordingly, the evidence adduced at trial and
    otherwise found in the record does not support Sharp’s
    allegation   that   the  government  presented   false
    testimony during his trial.
    (J.A. 316).
    As   to   the   allegation   that   the   Government   exceeded   the
    allowable scope during its rebuttal argument, the district court
    found that
    the complained-of reference to altered records by the
    government came in response to the closing argument of
    Sharp’s attorney referencing a memo by John Mitchell,
    Sharp’s office manager. . . .      In addition, he had
    argued that fraudulent claims arose due to John
    Mitchell’s advice or innocent mistakes, and that
    Sharp’s honest and law-abiding nature demonstrated
    that he had not knowingly hidden anything.
    Even if the government’s statements in response
    to this argument could be considered improper, they
    did not unfairly prejudice Sharp’s substantive rights;
    nor do they amount to reversible error.
    record on which the appellant relies.” Wahi v. Charleston Area
    Med. Ctr., Inc., 
    562 F.3d 599
    , 607 (4th Cir. 2009) (internal
    quotations omitted). Thus, this Court will not consider Sharp’s
    argument that the prosecutor “misstated the evidence.”
    19
    (J.A. 317-19).
    This Court reviews the denial of a motion for a new trial
    for an abuse of discretion. United States v. Adam, 
    70 F.3d 776
    ,
    779 (4th Cir. 1995).
    The test for prosecutorial misconduct has two components:
    “(1) the prosecutor’s remarks or conduct must in fact have been
    improper,     and     (2)     such   remarks     or     conduct     must     have
    prejudicially affected the defendant’s substantial rights so as
    to deprive the defendant of a fair trial.” United States v.
    Chorman, 
    910 F.2d 102
    , 113 (4th Cir. 1990) (internal quotations
    omitted).
    1.
    Although he fails to cite it in his brief, Sharp submitted
    a post-trial affidavit from Workman in which she swore that a
    few portions of her testimony were inaccurate and that she was
    “told by representatives of the Government that [she] was to
    answer the questions with a ‘yes’ or ‘no.’” (J.A. 289).                        We
    assume this is Sharp’s support for his charge the Government
    presented     false   testimony.      However,    even    the     most   cursory
    review   of   Workman’s     testimony   proves    the    contrary.         During
    cross-examination,      the    Government   asked     questions     of   Workman
    that required more than a “yes” or “no” response.                 Consequently,
    20
    many of Workman’s responses were more detailed and lengthy than
    merely “yes” or “no.”
    Furthermore,     even     if   Workman         were   so    instructed,      Sharp
    provides     no   legal   authority        to       support     his   argument    that
    requesting a witness to answer only “yes” or “no” has ever been
    construed by any court as improperly eliciting false testimony.
    Thus, there is simply no support for Sharp’s brazen accusation
    that the Government acted improperly in questioning Workman. 6
    2.
    Sharp    also   fails     to   cite       to    any   legal      authority    that
    supports his proposition that it constitutes reversible error
    for the Government’s rebuttal argument to reach matters beyond
    the scope of the defendant’s reply argument.
    However,     even    if   such   a    rule       exists,     the   Government’s
    reference to altered records was in direct reply to a theory
    raised by the defense during closing argument and throughout the
    trial; namely, the argument that any discrepancies in Sharp’s
    6
    We note that Sharp makes a serious charge against the
    Government when he states in his brief that “the government
    knowingly presented false testimony during trial.”       However,
    Sharp does so without citation to the record, citation to
    authority, and without explanatory argument. In doing so, Sharp
    walks close to a line of ethical breach.     We strongly caution
    counsel that such argument will be dealt with severely should it
    occur again. See Federal Rule of Appellate Procedure 46(c).
    21
    records    or    billing       were    caused       by    “human       error    mistakes,
    typographical errors, data entry, sloppy work, careless work” on
    the part of Sharp’s office manager, John Mitchell (“Mitchell”),
    or    others.     (J.A.       3626).          During       closing,       the        defense
    specifically mentioned the so-called “Mitchell memo” which it
    alleged    proved      that    Mitchell       encouraged         employees      to    alter
    records.   The    Government          properly      responded      to    the    defense’s
    theory, arguing that Sharp was actually the one altering the
    records because he had the most “to lose or gain.” (J.A. 3665).
    Consequently, this Court finds that there is no evidence
    that the Government engaged in any prosecutorial misconduct in
    this case.
    D.
    Sharp     next      contends          that,    because        the        superseding
    indictment was brought after the statute of limitations expired,
    and   because     there       were    “significant         variances”      between       the
    original      indictment      and     the    superseding         indictment,         certain
    counts in the superseding indictment are time-barred.
    In its order denying Sharp’s motion for a new trial, the
    district   court    held       that,    “because         Sharp   did    not     raise   the
    affirmative defense of the statute of limitations at trial, he
    has   waived     that    defense.”       (J.A.      315).         Alternatively,        the
    district court held that “there is no basis to conclude that the
    22
    Superseding   Indictment   broadened     the   charges   in   the   original
    Indictment such that the charges in the Superseding Indictment
    are barred . . . .” (J.A. 315).
    We    need   not   determine    whether     the     changes    in   the
    superseding indictment materially altered certain counts so that
    they did not relate back to the date of the original indictment.
    As the district court correctly found, because Sharp did not
    raise a statute of limitations defense before or during trial,
    he has consequently waived that defense. See United States v.
    Williams, 
    684 F.2d 296
    , 299 (4th Cir. 1982) (“The statute of
    limitations . . . is not jurisdictional.           It is an affirmative
    defense that may be waived.”).
    E.
    Sharp also argues that 
    18 U.S.C. § 1347
     does not apply to
    state-owned and –operated workers’ compensation systems, such as
    WVWC, because the statute “does not specifically state that it
    applies to state sponsored worker’s compensation programs nor
    does the legislative history mention it.” (Appellant’s Br. 24).
    The district court found that “Sharp cites no case law nor
    any portion of the relevant legislative history in support of
    his argument,” and “state workers’ compensation programs clearly
    fall under the express provisions of 
    18 U.S.C. § 1347
    .” (J.A.
    320-21).
    23
    This    Court    reviews      issues    of    statutory    construction    de
    novo.      United States v. Linney, 
    134 F.3d 274
    , 282 (4th Cir.
    1998).
    Sharp’s       argument   is    wholly        without    merit.    The   term
    “healthcare benefit program,” as used in § 1347, is defined as
    [A]ny public or private plan or contract, affecting
    commerce, under which any medical benefit, item, or
    service is provided to any individual, and includes
    any individual or entity who is providing a medical
    benefit, item, or service for which payment may be
    made under the plan or contract.
    
    18 U.S.C. § 24
    (b). Therefore, based on the clear language of the
    statute,    WVWC    plainly   falls    under       the   express   definition   of
    “healthcare    benefit    program.”          See,    e.g.,    United   States   v.
    Lucien, 
    347 F.3d 45
    , 52 (2d Cir. 2003).
    F.
    As to Sharp’s remaining claims, we have carefully reviewed
    all of these claims, the record, and the parties’ arguments and
    find that the district court, for the reasons expressed in its
    well-reasoned order denying Sharp’s motion for a new trial or
    for acquittal, properly denied relief. 7
    7
    As to Sharp’s claim that the district court erred during
    sentencing, we find that, because Sharp failed to order a
    transcript of the sentencing hearing, he has waived this issue
    on appeal. See Keller v. Prince George’s County, 
    827 F.2d 952
    ,
    954 n.1 (4th Cir. 1987).
    24
    III.
    For the foregoing reasons, the district court’s judgments
    are affirmed.
    AFFIRMED
    25
    

Document Info

Docket Number: 09-4932

Citation Numbers: 400 F. App'x 741

Judges: Agee, Dever III, Hamilton, James, Per Curiam

Filed Date: 11/5/2010

Precedential Status: Non-Precedential

Modified Date: 8/3/2023

Authorities (30)

Thomas F. Siciliano v. George Vose, Superintendent, MCI ... , 834 F.2d 29 ( 1987 )

United States v. Roberto MacEo , 873 F.2d 1 ( 1989 )

United States v. Tran , 519 F.3d 98 ( 2008 )

united-states-v-jean-maxon-lucien-frantz-mevs-waldon-desir-joseph , 347 F.3d 45 ( 2003 )

United States v. Courtney Dave Pennycooke Courtney ... , 65 F.3d 9 ( 1995 )

United States v. Wexler , 522 F.3d 194 ( 2008 )

United States v. Buck Williams, United States of America v. ... , 977 F.2d 866 ( 1992 )

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

Wahi v. Charleston Area Medical Center, Inc. , 562 F.3d 599 ( 2009 )

Dennis Persinger v. Norfolk & Western Railway Company , 920 F.2d 1185 ( 1990 )

United States v. Charles Donald Chorman, United States of ... , 910 F.2d 102 ( 1990 )

United States v. Larry R. Linney , 134 F.3d 274 ( 1998 )

jeanie-mentavlos-v-john-justice-anderson-james-saleeby-the-citadel-the , 249 F.3d 301 ( 2001 )

william-cooper-v-smith-nephew-incorporated-and-smith-nephew , 259 F.3d 194 ( 2001 )

Michael Earl Sexton v. James B. French, Warden, Central ... , 163 F.3d 874 ( 1998 )

United States v. Ben McMeans , 927 F.2d 162 ( 1991 )

United States v. Willie James Richardson, A/K/A Riz, A/K/A ... , 195 F.3d 192 ( 1999 )

Medicare & Medicaid Guide P 43,911 United States of America ... , 70 F.3d 776 ( 1995 )

Mazie Keller v. Prince George's County Prince George's ... , 827 F.2d 952 ( 1987 )

United States v. Pettiford , 612 F.3d 270 ( 2010 )

View All Authorities »