Filed: Jun. 23, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4231 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. EDDIE WAYNE LOUTHIAN, SR., Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:12-cr-00002-JPJ-PMS-1) Argued: March 18, 2014 Decided: June 23, 2014 Before NIEMEYER, KING, and AGEE, Circuit Judges. Affirmed by published opinion. Judge King wrote the opinion, in which Judg
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4231 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. EDDIE WAYNE LOUTHIAN, SR., Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:12-cr-00002-JPJ-PMS-1) Argued: March 18, 2014 Decided: June 23, 2014 Before NIEMEYER, KING, and AGEE, Circuit Judges. Affirmed by published opinion. Judge King wrote the opinion, in which Judge..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4231
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EDDIE WAYNE LOUTHIAN, SR.,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:12-cr-00002-JPJ-PMS-1)
Argued: March 18, 2014 Decided: June 23, 2014
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Niemeyer and Judge Agee joined.
ARGUED: Michael John Khouri, LAW OFFICES OF MICHAEL KHOURI,
Irvine, California, for Appellant. Janine Marie Myatt, OFFICE
OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.
ON BRIEF: Timothy J. Heaphy, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
KING, Circuit Judge:
Eddie Wayne Louthian, Sr., was convicted in the Western
District of Virginia of multiple offenses arising from a health
care fraud scheme. On appeal, Louthian challenges each of his
convictions, as well as the district court’s forty-eight-month
sentence and forfeiture order of nearly $1 million. As
explained below, we are content to affirm.
I.
A.
Between 2005 and 2011, Louthian was President and Business
Manager of the Saltville Rescue Squad, Inc. (the “Squad”),
headquartered in Saltville, Virginia. 1 The Squad provided
ambulance transport for medical emergencies, plus, inter alia,
non-emergency transportation for dialysis patients. Although it
was nominally a volunteer organization, the Squad had a paid
staff, including Louthian. 2 The Squad billed Medicare and
1
We recite the relevant facts in the light most favorable
to the government, as the prevailing party at trial. See United
States v. Madrigal-Valadez, 561 F.3d 370, 374 (4th Cir. 2009).
2
Louthian’s salary in 2005, prior to the fraudulent
activities for which he was convicted, was approximately $28,000
per year. By 2010, his annual compensation had nearly doubled,
eclipsing $52,000.
2
certain private insurers, including Anthem Blue Cross/Blue
Shield (“Anthem”), for its services.
The Medicare system provides insurance coverage for
ambulance transportation to and from dialysis centers when
conveyance by other means would endanger a patient’s health.
Before authorizing payments for recurring, non-emergency
transports, Medicare requires the issuance of a physician
certification statement, also known as a Certificate of Medical
Necessity (“CMN”). Once issued, a CMN is valid for a period of
up to sixty days. Although a CMN is a prerequisite for such
transports, the existence of a valid CMN does not definitively
establish medical necessity. For that, Medicare relies on
contemporaneous documentation of the patient’s condition, as
observed by an emergency medical technician (“EMT”) or
paramedic. The ambulance staff fills out a form referred to as
a “call sheet” or “trip sheet” to provide that documentation.
The Medicare system is administered to ensure that claims
for dialysis transports are paid to providers as quickly as
possible. When such a claim is filed electronically, it must be
paid within fifteen days of receipt. If a claim is filed on
paper, it must be paid within twenty-nine days. Because of the
large volume of such claims for Medicare payments, little or no
inquiry is made into the validity of claims as they are
received. If a paid claim is ultimately suspected of having
3
been fraudulently submitted, the authorities will investigate
and pursue an appropriate reimbursement, in addition to
potential criminal charges — a procedure sometimes referred to
as “pay and chase.”
B.
In April 2008, the Medicare Fraud Control Unit of the
Virginia Attorney General’s Office (the “Fraud Unit” or the
“Unit”) began investigating the Squad’s activities. The Fraud
Unit suspected that the Squad was engaged in a scheme to falsely
bill Medicare and private insurers for services that were not
medically necessary. The Unit’s investigation focused on the
Squad’s billings for services to three dialysis patients,
referred to herein by their initials: “JR,” “NH,” and “BM.”
The Squad provided round-trip ambulance transportation for those
patients, up to three times per week, between their Saltville
homes and a dialysis center in Abingdon, Virginia, about twenty
miles away. For each such transport, the Squad billed Medicare
approximately $1,200 to $1,500. The Squad would also bill
Anthem, which was a secondary insurer for each of the three
patients. 3
3
According to the indictment, the aggregate of the false
billings to Medicare and Anthem with respect to the three
patients was in the neighborhood of $2.6 million, consisting of
more than $1.6 million billed to Medicare, plus about $1 million
billed to Anthem. The Squad was alleged to have received
(Continued)
4
During the investigation, Fraud Unit agents conducted video
surveillance and interviewed the Squad’s employees and other
witnesses. The Unit’s investigation established that JR, NH,
and BM could all walk, drive, and engage in other physical
activities without difficulty and, as a result, could readily
have been transported to dialysis by some less extraordinary
means. The Unit, working with the United States Attorney, also
unearthed evidence that Louthian and other Squad employees had
forged, altered, and lied about the three patients’ medical
conditions on documents submitted to support the Squad’s
requests for payments. During the investigation, Louthian
appeared before a federal grand jury in Abingdon, where he
testified concerning the Squad’s activities.
On January 17, 2012, Louthian, Squad employee Monica Hicks,
and the Squad itself were indicted by the grand jury. Louthian
was charged in Count One with conspiracy to commit health care
fraud, see 18 U.S.C. § 1349; in Count Two with the substantive
offense of health care fraud, see id. § 1347; and in Counts
Three through Six with making false statements for payment by a
reimbursements for these billings of around $880,000, accounting
substantially for the district court’s criminal forfeiture award
exceeding $907,000.
5
health care benefit program, see id. § 1035. 4 Counts Seven and
Eight alleged money laundering, see
id. § 1957, and Count Nine
alleged that Louthian committed perjury before the grand jury,
see
id. § 1623. Hicks and the Squad were charged with Louthian
in Counts One through Six (the “health care offenses”), and the
Squad was a codefendant with Louthian in Counts Seven and Eight.
Count Ten charged Hicks and the Squad with making false
statements for payment by a health care benefit program. See
id. § 1035. Finally, the indictment included a Notice of
Forfeiture to each defendant. See
id. § 982. On June 28, 2012,
Hicks pleaded guilty to Count One, pursuant to an agreement with
the United States Attorney. Louthian and the Squad, on the
other hand, opted to go to trial.
C.
The jury trial of Louthian and the Squad, which began in
Abingdon on September 10, 2012, lasted for about ten days. The
prosecution called roughly two dozen witnesses, including
Medicare and Anthem administrators and investigators, law
enforcement officers, current and former Squad employees, and
neighbors and family members of the three dialysis patients.
4
A “health care benefit program” is “any public or private
plan or contract, affecting commerce, under which any medical
benefit, item, or service is provided to any individual.” See
18 U.S.C. § 24(b). Medicare and Anthem are health care benefit
programs for the purposes of the health care offenses.
6
The prosecutors initially focused on the Fraud Unit’s
observations of JR, NH, and BM. The evidence confirmed that,
despite their need for regular dialysis treatment, the three
patients lived relatively active lifestyles that belied their
purported immobility. For example, patient JR regularly walked
to and from the Squad’s ambulance under her own power, often
climbing into the ambulance through its side door. A neighbor
saw JR at various times working in her yard, shopping at the
grocery store, and walking around at other locations.
Investigator Branson of the Unit conducted video surveillance of
JR that corroborated the neighbor’s account. One video clip
showed JR being carried on a wheeled stretcher from the Squad’s
ambulance to her porch. She then climbed off the stretcher on
her own and, showing no distress, got into a car to drive to a
local senior center. Squad employees confirmed that JR was able
to walk to and from the ambulance, step into the ambulance
through its side door, and climb onto the stretcher without
assistance.
The evidence concerning patient NH was similarly damning.
Several video clips showed that NH was able to move around
rather easily while being transported by the Squad, including a
clip where NH was allowed to stop at a Hardee’s restaurant for
breakfast on the way to a dialysis appointment. Investigator
Darby of the Fraud Unit described an incident in which NH,
7
immediately after being taken to her porch on a stretcher, stood
in her doorway briefly conversing with Squad employees, then
drove to a nearby town to shop at several stores. As with JR,
Squad employees confirmed that NH was able to walk and stand,
and was not bedridden. In fact, while being transported, NH
would often sit in the captain’s chair in the back of the
Squad’s ambulance. NH’s mid-transport Hardee’s visits were
shown to be regular occurrences, and NH sometimes even walked
into the restaurant herself. One Squad witness related that NH
was a guest of the Squad at its holiday parties.
The third patient, BM, passed away before the Fraud Unit
had an opportunity to observe him. BM’s daughter, however,
explained that BM had been her mother’s primary caretaker. As
such, BM did the grocery shopping, administered his wife’s
medicines, and kept up with her medical appointments. BM would
drive himself to doctor’s appointments, work in his garden, and
help seal driveways for his son’s paving business. Former Squad
employees admitted that BM was using ambulance transport
notwithstanding their knowledge that he could walk, stand, and
drive. The prosecution also introduced BM’s medical records,
along with those of the other two patients. The records were
replete with references indicating that each of them could walk,
stand, and engage in nearly all the normal activities of daily
living.
8
According to Hicks (the convicted codefendant), Louthian
knew that Medicare and Anthem would not pay the Squad for
transporting JR, NH, and BM to dialysis if their physical
conditions were properly reported. Consequently, at Louthian’s
direction, Squad employees and volunteers engaged in a pattern
of forging and altering CMNs, recording false information on
call sheets, and making other material misrepresentations that
Louthian hoped would “get [the] transports paid.” J.A. 576. 5
Because a patient’s condition is subject to change,
Medicare regulations require that transportation service
providers obtain a new CMN for each patient every sixty days.
Nonetheless, the Squad billed Medicare and Anthem for almost
eighteen months (from July 2006 to January 2008) without
obtaining a new CMN for either JR, NH, or BM. Instead, Louthian
and Hicks altered the dates of old CMNs and submitted them in
aid of reimbursement. According to Hicks, she and Louthian were
well aware that the justifications in the old CMNs — for
example, that the patients could neither stand nor walk, or were
bedridden — were not true.
Louthian and his fellow Squad employees were even more
brazen in their falsifications of call sheets generated for
5
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
9
transports. For example, Louthian taught Hicks to use “good
word[s]” like “non-ambulatory” in her narratives, regardless of
a patient’s actual condition. J.A. 660. Tellingly, Hicks
admitted that she did not then know what “non-ambulatory” meant
— only that its incantation would help ensure payments. Once
Hicks “knew how to fill them out to get them paid,” Louthian
instructed her to prepare call sheets in advance for other Squad
employees, who would then sign them. Id. at 576. On those
sheets, Hicks would make notations such as “unable to stand,”
even though she and Louthian, who were frequently in ambulances
with the patients, knew the representations to be false.
Several Squad employees acknowledged using call sheets that
were prepared in advance, and also being instructed by Louthian
to embellish call sheets with fabricated details. Bunch, an
EMT, identified several occasions when he placed false
information on call sheets at Louthian’s direction. For
example, a call sheet dated May 31, 2006, when Bunch was the
ambulance driver and Louthian was the attendant-in-charge,
reported that NH was “non-ambulatory,” “stretcher bound,”
“unable to stand,” and in need of “O2 [oxygen] in transport.”
All of these entries were false. See J.A. 382-84. EMT Lee
conceded that a July 1, 2006 call sheet with her name on it was
written by someone else, explaining that the narrative contained
false statements about JR’s health. EMT Cassel admitted that
10
her statements on two call sheets were untrue. Another Squad
employee, McAllister, testified about call sheets involving
patient BM. Although the narratives indicated that BM’s chronic
health concerns caused him to fall frequently, McAllister had no
recollection of BM ever falling. Finally, EMT Bellinger
admitted signing prerecorded call sheets and creating her own
false narratives at Louthian’s request. Bellinger confirmed
that Squad employees were instructed to use words like “non-
ambulatory,” even when the patients could walk, and that
Louthian told her to report that NH was “partially blind,” even
though Bellinger had seen NH driving her own vehicle. Id. at
695.
After Louthian learned that the dialysis transports were
under investigation, he caused the Squad to alter the manner in
which it transported patients, in an effort to cover up the
false billing scheme. Once Louthian realized the Squad was
being watched by the investigators, he insisted that the
patients be kept on stretchers at all times and not allowed to
walk to and from the ambulances. The Squad’s minutes of a May
19, 2008 meeting reflected Louthian’s change of procedure and
11
indicated why it was made, stating: “TRANSPORTS: TAKE IN AND
OUT OF HOUSE ON COTS. HAD FOLLOWERS ON TRANSPORT.” J.A. 1211. 6
On February 17, 2009, Louthian was questioned before the
federal grand jury regarding the changes he had made to the
Squad’s transport procedures after becoming aware of the Fraud
Unit’s investigation. That testimony resulted in the perjury
charge against him. Count Nine alleged that Louthian’s answers
to the following grand jury inquiries were materially false:
Q: Approximately when was it that the people who were
being transported for dialysis were always on a
stretcher? When did you say this has gotta end, these
people have to be on a stretcher?
A: I don't recall I said that except as far as [NH]
was concerned. I, I told ‘em, I said “I don't care
how much hell she raises, I don't care what she says,
she’s either going on a stretcher or she ain’t going.”
Q: And when was this?
A: That's been a couple a years ago.
Q: A couple of years ago?
A: Yeah.
Q: And you believe that she was being transported in
that manner after that?
A: That was my understanding, yes ma’am.
Q: Okay. And she was eventually —
6
The word “FOLLOWERS,” as used in the May 19, 2008 meeting
minutes, was construed by the prosecutors to refer to Louthian’s
concern that the transports were being watched and investigated.
The jury, by its verdict, agreed with that construction.
12
A: She was always on it when I went.
J.A. 41 (emphasis in indictment). The questions and answers
particularized in Count Nine were submitted to the jury with the
appropriate instructions. The prosecutors argued that Louthian
perjured himself when he told the grand jury that NH was always
transported on a stretcher in his presence, and that things had
been done that way for a couple of years. Indeed, Louthian’s
testimony was directly contradicted by video evidence showing NH
walking from the ambulance to her front door, with Louthian
present, just nine months before his grand jury appearance.
The prosecution rested its case on September 18, 2012.
Louthian then moved for acquittal under Federal Rule of Criminal
Procedure 29, asserting that the evidence failed to make a prima
facie showing of fraud. The district court denied the acquittal
motion, after which the defense also rested. Following closing
arguments and instructions, the jury deliberated and returned
its verdict. Louthian was convicted of the health care offenses
in Counts One through Six, plus perjury as charged in Count
Nine, but was acquitted of the Counts Seven and Eight money
laundering charges. The Squad was acquitted of all charges.
Louthian thereafter sought post-trial relief on the basis of
what he called “inconsistent verdicts,” i.e., that although he
13
had been convicted, the Squad was acquitted. The court denied
that motion as well.
D.
On November 19, 2012, the district court conducted a
hearing on the prosecution’s request for a criminal forfeiture.
Evidence was then introduced demonstrating that Medicare and
Anthem paid more than $900,000 for dialysis transports of JR,
NH, and BM. 7 The prosecutors also presented evidence
establishing the value of real estate and other property owned
by the Squad, identifying various bank accounts into which
fraudulent payments had been deposited.
On February 15, 2013, the district court filed its opinion
on the criminal forfeiture issue. See United States v.
Louthian, No. 1:12-cr-00002 (W.D. Va. Feb. 15, 2013), ECF No.
244. The court therein concluded that the government was
“entitled to a money judgment of forfeiture against [Louthian].”
Id. at 5. Accordingly, the court entered a preliminary order of
forfeiture against Louthian of $907,521.77.
Louthian’s sentencing hearing was conducted on March 20,
2013. The presentence report (“PSR”) grouped his seven
convictions and calculated a total offense level of 32 with a
7
The evidence at the forfeiture hearing established that
approximately $772,000 was paid to the Squad by Medicare, and
another $135,000 was paid by Anthem.
14
criminal history category of I. As a result, Louthian’s
advisory Guidelines range was 121 to 151 months of imprisonment.
At the hearing, Louthian lodged objections to several aspects of
the PSR, including his punitive classification as a leader or
organizer of the fraud scheme, an enhancement for abusing a
position of trust, an enhancement for obstruction of justice,
and the loss calculation.
The district court rejected each of Louthian’s objections
and adopted the PSR. The court also denied Louthian’s request
for a downward departure based on his age (sixty-one years),
poor health (severe bleach allergy, depression, hypertension,
osteoarthritis, and diabetes), and lack of a criminal history.
The court nevertheless varied downward from the advisory
Guidelines range and imposed seven concurrent prison terms of
forty-eight months each. On March 21, 2013, the court entered
its criminal judgment, incorporating the preliminary order of
forfeiture. The forfeiture order was subsequently amended,
necessitating amendment of the criminal judgment, which occurred
on April 15, 2013. Louthian has timely noted this appeal, and
we possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
15
II.
Louthian contends that myriad errors infected his trial and
sentencing. Most vigorously, Louthian challenges the
sufficiency of the evidence used to convict him of the health
care offenses in Counts One through Six and of the perjury
offense in Count Nine. Louthian asserts further that the jury
returned inconsistent verdicts, with the result that the
district court should have granted his motion for post-trial
relief. With respect to the sentence imposed, Louthian
maintains that the court erroneously denied his request for a
downward departure, and that he was improperly subjected to
criminal forfeiture proceedings. We assess these contentions in
turn.
A.
We first evaluate Louthian’s challenge to the sufficiency
of the evidence supporting his convictions on the health care
offenses. We will sustain a guilty verdict “if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” United States v. Whitfield, 695
F.3d 288, 310 (4th Cir. 2012) (internal quotation marks
omitted). Substantial evidence exists if there 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.”
Id. (internal quotation marks omitted).
16
In determining whether there is substantial evidence to support
a verdict, we defer to the jury’s determinations of credibility
and resolutions of conflicts in the evidence, as they “are
within the sole province of the jury and are not susceptible to
judicial review.” See United States v. Lowe, 65 F.3d 1137, 1142
(4th Cir. 1995).
In order to prove the conspiracy to commit health care
fraud (Count One) the government was required to show, inter
alia, an unlawful agreement between Louthian and at least one
other person to commit health care fraud. See 18 U.S.C. § 1349.
The substantive health care fraud offense (Count Two) required
proof that Louthian had
knowingly and willfully execute[d] . . . a scheme
. . . (1) to defraud any health care benefit program;
or (2) to obtain, by means of false or fraudulent
. . . representations . . . any of the money . . .
[of] any health care benefit program . . . in
connection with the delivery of or payment for health
care benefits, items, or services.
See id. § 1347. Finally, the four false statement charges
(Counts Three through Six) required proof that Louthian
“knowingly and willfully . . . ma[de] . . . materially false
. . . or fraudulent statements . . . in connection with the
delivery of or payment for health care benefits, items, or
services.” See
id. § 1035.
The common thread sustaining or defeating Louthian’s
challenge to all six health care offenses is whether there was
17
sufficient evidence to prove that he made false and fraudulent
misrepresentations to a health care benefit program. Consistent
with his Rule 29 requests for acquittal, Louthian contends that
the prosecution fell short of its burden because it failed to
prove that the dialysis transport services provided to JR, NH,
and BM were not “medically necessary.” Br. of Appellant 9. In
that regard, Louthian relies on the regulatory provision in 42
C.F.R. § 410.40(d)(1), which specifies (with emphasis added)
that Medicare will pay for non-emergency ambulance
transportation if a patient’s medical condition, “regardless of
bed confinement, is such that transportation by ambulance is
medically required.” Predicated on that regulation, Louthian
argues that, although JR, NH, and BM were not bedridden, the
prosecution nevertheless had to prove beyond a reasonable doubt
that the patients could not otherwise have satisfied Medicare’s
requirements.
This contention fundamentally misapprehends the nature of
the health care offenses. Louthian was not convicted of
providing services to individuals who did not qualify for
insurance reimbursements. His convictions were based upon false
and fraudulent statements to Medicare and Anthem to secure
payments for the dialysis transports. Louthian and those under
his supervision falsely advised Medicare and Anthem that JR, NH,
and BM needed ambulance transportation because they were
18
bedridden. The trial evidence was more than sufficient to
support the jury’s finding that such representations were
untrue. The prosecution presented video, photographic, and
testimonial evidence illustrating that the Squad’s dialysis
transport patients were able to stand, walk, drive, shop,
garden, and perform manual labor, among other things.
Nonetheless, Louthian repeatedly caused call sheets to be
submitted describing the patients as bedridden, non-ambulatory,
and unable to stand or walk. Louthian himself was involved in
several of the relevant dialysis transports, and thus was
personally aware of the patients’ actual abilities. And when
Louthian learned that the Squad’s activities were under
scrutiny, he caused the Squad to alter its practices in an
effort to obstruct the Fraud Unit’s investigation and to cover
up his fraudulent misdeeds.
Even if Louthian’s premise is assumed to be valid — that he
could not be guilty of the health care fraud offenses unless the
prosecution proved that the ambulance transports were not
medically required — his defense theory would nevertheless fail.
Employing a definition of medical necessity that suits his
purposes, Louthian suggests that the health conditions of the
three patients were such that, without ambulance transport,
“there is a likelihood that they could have suffered serious
medical issues.” Br. of Appellant 10. But that argument
19
ignores the facts, i.e., that each of the three patients
frequently rode in automobiles — or even drove vehicles
themselves — and that, bedfast or not, they did not need an
ambulance to get around. Viewing the evidence properly, a
reasonable jury was entitled to find that ambulance
transportation of the three patients from Saltville to the
dialysis center in Abingdon was not “medically required” — by
any definition. 8 We therefore reject Louthian’s contention that
the evidence was insufficient to support his convictions on the
six health care offenses.
B.
Louthian’s challenge to evidence sufficiency on the perjury
offense in Count Nine must also be rejected. In order to meet
its burden on that charge, the prosecution was obliged to show
that Louthian knowingly made a false material declaration, under
8
In its closing argument, the prosecution illustrated the
absurdity of the notion that the patients’ true medical
conditions, if known to Medicare and Anthem, would have
supported the conclusion that ambulance transportation was
medically required. The prosecutor asked, “What if [Louthian
and the Squad] actually wrote what happened,” elaborating:
Imagine a [call] sheet for [NH]. “Patient walked to
ambulance from her home, stepped in through the side
door, patient sat in the captain’s chair until the
ambulance brought her to Hardees. She went into
Hardees for a ham biscuit, got back in.” [The bill to
Medicare] wouldn’t get paid.
J.A. 913-14.
20
oath, in his testimony before the grand jury. See United States
v. Wilkinson, 137 F.3d 214, 224 (4th Cir. 1998). At trial, the
prosecution argued that Louthian’s testimony to the grand jury
(that NH had been transported on the stretcher for “a couple of
years”) was inconsistent with the video of Louthian watching NH
walk from the ambulance to her home just a few months before his
grand jury appearance.
Blaming the vagueness of the prosecutor’s questions,
Louthian contends that his answers were the product of
confusion, rather than deception. Specifically, he argues, the
prosecutor failed to adequately define the word “transported” in
the question: “And you believe she was being transported in
that manner after that?” According to Louthian, if
“transported” referred only to the time that NH was in the
ambulance, then the prosecution failed to prove that his
response was false. See United States v. Hairston, 46 F.3d 361,
376 (4th Cir. 1995) (vacating perjury conviction when, despite
multiple potential meanings, defendant’s answer to grand jury
inquiry was literally true).
But the Hairston decision does not stand for the
proposition that we must vacate a perjury conviction whenever a
perjurer, on appeal, can stir up some potential ambiguity in a
grand jury’s inquiries. As Judge Motz recently explained,
Hairston was predicated on the unique circumstance that the
21
allegedly false statement had an “obvious,” non-perjurious
meaning. See United States v. Sarwari, 669 F.3d 401, 406 (4th
Cir. 2012). It does not apply in a situation — such as this —
where “the focus is on the ambiguity of the question asked.”
Id. (internal quotation marks omitted).
Thus, although Louthian’s lack-of-evidence theory on the
perjury offense was appropriate for the jury’s consideration, it
is, as an appellate challenge to evidence sufficiency, without
substance. The jury was permitted to conclude, given the
context of the prosecutor’s questions and the nature of the
allegations against Louthian, that, consistent with the
government’s characterization, he understood the question and
lied to avoid criminal liability. It would be inappropriate for
us to second-guess the verdict in that regard. Therefore, we
will not disturb Louthian’s perjury conviction.
C.
Next, we examine de novo Louthian’s contention that the
district court erred in denying his post-trial request for
acquittal or a new trial based on inconsistent verdicts. See
United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010).
Relying on the Supreme Court’s decision in New York Central &
Hudson Railroad v. United States for the proposition that a
corporation — like the Squad — is criminally liable for
unlawful acts committed by its agent in the scope of his
22
employment, Louthian maintains that it was legally and logically
inconsistent for the jury to convict him of the health care
offenses while acquitting his codefendant, the Squad itself.
See 212 U.S. 481 (1909).
Put simply, Louthian’s inconsistent-verdicts argument is
baseless. First, as the government points out, there are a
number of reasonable explanations for the verdicts. For
example, the jury may not have believed that Louthian was acting
for the benefit of the Squad or within the scope of his
employment. In either event, the verdicts would not be
inconsistent.
More importantly, however, it is well-settled that a
defendant “cannot challenge his conviction merely because it is
inconsistent with a jury’s verdict of acquittal on another
count.” See United States v. Thomas, 900 F.2d 37, 40 (4th Cir.
1990) (citing United States v. Powell,
469 U.S. 57 (1984)).
Indeed, an inconsistent verdict can result from mistake,
compromise, or lenity, and a jury could just as likely err in
acquitting as in convicting. In any event, it can never be
known “whose ox has been gored.” See
Powell, 469 U.S. at 65.
“Given this uncertainty, and the fact that the Government is
precluded from challenging the acquittal, it is hardly
23
satisfactory to allow the defendant to receive a new trial as a
matter of course.” Id. 9
Louthian acknowledges the foregoing, but asks that we
“carve out an exception to [the Supreme Court’s] rigid and
unworkable rule.” Br. of Appellant 19. Having neither the
authority nor the inclination to do so, we decline to intrude
upon the verdicts. 10
D.
Louthian also challenges his below-Guidelines sentence of
forty-eight months as being excessive, in view of his age, poor
health, and lack of a criminal history. For those reasons, he
argues, the district court ought to have departed downward. We
are unable, however, to review a sentencing court’s decision not
9
The rule against disturbing an inconsistent verdict has
been steadfastly followed for more than eighty years. In Dunn
v. United States, the Supreme Court held that a defendant could
be convicted of keeping intoxicating liquor for sale even though
the jury also found him not guilty of unlawful possession of
intoxicating liquor. See 284 U.S. 390 (1932). The Court
explained that “consistency in the verdict is not necessary.”
Id. at 393. More recently, in United States v. Collins, we
declined to overturn a conspiracy conviction when the
defendant’s only coconspirator was acquitted of the same charge.
See
412 F.3d 515, 519-20 (4th Cir. 2005) (“The law is
established on this point . . . that a defendant is not entitled
to a new trial when the jury reaches an inconsistent verdict.”).
10
Louthian also pursues, as a subpart of his inconsistent-
verdicts contention, the proposition that his acquittal on the
money laundering charges (Counts Seven and Eight) undermines the
guilty verdict on the six health care offenses. We reject that
contention as well.
24
to depart unless the court mistakenly believed that it lacked
the authority to do so. See United States v. Brewer, 520 F.3d
367, 371 (4th Cir. 2008). Before pronouncing sentence, the
court recognized its obligation to “consider any applicable
departure policy statements by the Sentencing Commission.” J.A.
1056. The court then considered Louthian’s request for a
downward departure under the Guidelines, but concluded that none
was appropriate. Because the court understood its authority,
but declined to exercise it on the facts of this case, Louthian
cannot contest on appeal the court’s failure to depart downward.
To the extent that Louthian challenges his sentence as
otherwise unreasonable, we are unmoved. We review a court’s
sentencing decisions for abuse of discretion only. See Gall v.
United States, 552 U.S. 38, 49-51 (2007). Any sentence that is
within or below a properly calculated Guidelines range is
presumptively reasonable. See United States v. Abu Ali,
528
F.3d 210, 261 (4th Cir. 2008). Such a presumption can only be
rebutted by showing that the sentence is unreasonable when
measured against the 18 U.S.C. § 3553(a) factors. See United
States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006).
Louthian makes no assertion that his forty-eight-month
sentence was tainted by procedural flaws, such as errors in
calculating the Guidelines range, erroneously treating the
Guidelines as mandatory, failing to properly consider the
25
§ 3553(a) factors, predicating the sentence on clearly erroneous
facts, or failing to adequately explain the sentence. See Gall,
552 U.S. at 51. Meanwhile, we cannot conclude that his sentence
was substantively unreasonable. See United States v. Mendoza-
Mendoza,
597 F.3d 212, 216 (4th Cir. 2012). We observe that,
although the court denied Louthian’s request for a departure on
account of age, health, and criminal history, it varied downward
for those very reasons, imposing an aggregate sentence (48
months) that is less than half the low end of his Guidelines
range (121 months). Louthian’s sentence therefore cannot be
deemed unreasonable. 11
E.
Finally, Louthian contends that he was unfairly prejudiced
when the prosecutors “chose to pursue” a criminal forfeiture
against him after his trial. Br. of Appellant 26. Instead,
Louthian maintains, the prosecution should have initiated a
11
In conjunction with his sentencing challenge, Louthian
also complains that his forty-eight-month sentence will have a
“chilling effect” on others in the health care industry. Br. of
Appellant 25. We are satisfied that this was probably the
United States Attorney’s intention, and that the Department of
Justice will be pleased if this prosecution serves to forestall
other health care fraud schemes. As the district court properly
emphasized, “deterrence is an important factor in determining an
appropriate sentence in this case,” because “without an
appropriate sentence of incarceration, other people might well
believe that it is worth a chance to engage in medical billing
fraud.” J.A. 1060-61.
26
civil forfeiture action against him and the Squad, so that he
could have lodged a cross-claim against the Squad for state-law
indemnity. 12 As the government responds, however, a criminal
forfeiture of tainted assets in a health care fraud proceeding
is mandatory. See 18 U.S.C. § 982(a)(7) (“[T]he court . . .
shall order the person to forfeit property, real or personal,
that constitutes, or is derived, directly or indirectly, from
gross proceeds traceable to the commission of the offense.”
(emphasis added)). In this situation, it is apparent that the
prosecution and the court adhered to the applicable procedures.
The grand jury properly alleged the intention of the government
to seek a criminal forfeiture. See Fed. R. Crim. P. 32.2(a).
Following the verdict, the prosecution requested a preliminary
order of forfeiture, and the court conducted an appropriate
hearing. See Fed. R. Crim. P. 32.2(b)(1)(A)-(B). The court
then entered its preliminary forfeiture order, which was
subsequently incorporated into the criminal judgment. See Fed.
R. Crim. P. 32.2(b)(4)(B)-(C). Accordingly, despite Louthian’s
12
Civil and criminal forfeiture are distinct enforcement
tools available to federal prosecutors. Whereas a criminal
forfeiture is an in personam action that requires a conviction,
civil forfeiture is an in rem action against the property
itself. The two types of forfeiture are not, in most instances,
mutually exclusive, and the choice of which type to pursue is
often a tactical one committed to the sound discretion of the
United States Attorney.
27
expressed preferences, there is no basis for concluding that the
court erred with respect to the forfeiture proceedings.
III.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
28
