                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4537


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CHARLOTTE ELIZABETH GARNES, a/k/a Charlotte Elizabeth Carter,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Frank D. Whitney,
Chief District Judge. (3:12-cr-00249-FDW-DCK-1)


Submitted:   August 8, 2014              Decided:   October 20, 2014


Before KING, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William D. Auman, AUMAN LAW OFFICES, Asheville, North Carolina,
for Appellant.    Anne M. Tompkins, United States Attorney,
William M. Miller, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A    federal      jury     convicted        Charlotte         Elizabeth           Garnes   of

conspiracy         to    commit    health      care       fraud,          obstruction       of    an

official proceeding, and ten counts of making a false statement

relating to a health care benefit program. In this appeal, she

raises three claims challenging her conviction and sentence. We

affirm.

                                               I.

       Garnes      first    claims      that    the       district         court     abused       its

discretion        by    permitting      the    government            to    cross-examine          her

regarding         an    extramarital      affair         with    her       former        boss.    “We

review      evidentiary         rulings   for       abuse       of    discretion.”          United

States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997).

       We       conclude    that    the     district        court          acted    within        its

discretion in allowing the government’s questions. During cross-

examination, the government sought to show that Garnes had been

fired      from    her     previous     employment         for       failure        to    maintain

proper records. Garnes responded to this line of questioning by

stating that she was dismissed because she reported the “owner’s

wife       or    owner’s    girlfriend”        for       fraudulently          billing       using

Garnes’s Medicaid number (J.A. 861). Seeking to impeach this

alternative explanation, the government then questioned Garnes

about      her    extramarital       affair        with    the       owner,        and    Garnes’s

counsel         objected    on    the   basis       of    Federal          Rule     of    Evidence

                                               2
404(b).   The     district     court   correctly         overruled     the   objection

because    Rule      404(b)    does    not       control    evidence    offered       for

impeachment     on    cross-examination. 1         See     also   United     States    v.

Smith,    451   F.3d    209,    223    (4th      Cir.    2006)    (“[T]he    rules    of

evidence permit cross-examination of a witness about specific

instances of misconduct if probative of truthfulness [and] the

trial court has wide discretion to decide whether (and to what

extent) such questioning is proper and relevant.”). 2




     1
       The 1972 Advisory Committee Notes to Rule 404(b) state
that the Rule does not require a court to exclude evidence that
is offered for a purpose other than to suggest that the
defendant acted in conformity with a character trait on a
particular occasion; such evidence “does not fall within [the
Rule’s] prohibition.” In this case, the evidence in question was
offered not to show propensity but as probative of Garnes’s
character for truthfulness, which Federal Rule of Evidence
608(b) explicitly allows on cross-examination.
     2
       Recognizing that Rule 404(b) was “perhaps not the most
appropriate reference” for her objection during trial, Garnes
also argues, for the first time on appeal, that the questioning
should have been excluded under Federal Rule of Evidence 403
(Appellant’s Br. at 9). Because Garnes did not raise this
argument at trial, we review the district court’s ruling for
plain error with respect to Rule 403. United States v. Pratt,
239 F.3d 640, 644 (4th Cir. 2001).

Rule 403 allows a court to exclude relevant evidence if the
danger of unfair prejudice it presents substantially outweighs
its probative value. As discussed above, the government’s
questions regarding Garnes’s extramarital affair were probative
of the veracity of her testimony regarding her dismissal from
her previous job. We cannot say that the district court’s
judgment that these questions were not substantially more
prejudicial than probative rises to the level of plain error.



                                             3
                                          II.

        Garnes next claims that the district court erred by denying

her motion for a judgment of acquittal under Federal Rule of

Criminal       Procedure     29.    Specifically,          she    contends     that     the

evidence the government presented was insufficient to establish

that her convictions for conspiracy to commit health care fraud

and making false statements relating to a health care benefit

program were “knowing and willful.” 3

     We review challenges to the sufficiency of the evidence de

novo,    United     States    v.    Alerre,     430   F.3d       681,   693    (4th    Cir.

2005), and we “must sustain the verdict if there is substantial

evidence, viewed in the light most favorable to the Government,”

to support it, Burks v. United States, 437 U.S. 1, 17 (1978). “A

defendant challenging the sufficiency of the evidence faces a

heavy burden.” United States v. Bonner, 648 F.3d 209, 213 (4th

Cir. 2011).

                                           A.

        To    convict   Garnes      of   conspiracy        to    commit    health      care

fraud,       the   government      was   required     to    show    that      Garnes   had


     3
       Garnes also challenges the sufficiency of the evidence
supporting her conviction for obstruction of an official
proceeding, arguing that the evidence adduced at trial “lack[ed]
the requisite legal standard” (Appellant’s Br. at 16). We have
reviewed the record and find this contention to be without
merit.



                                           4
“knowingly      and    willfully        executed”          a       fraudulent        health    care

scheme. United States v. Louthian, 756 F.3d 295, 303 (4th Cir.

2014). This Court has long recognized that the jury may infer

knowledge and intent from circumstantial evidence in conspiracy

cases. See United States v. Tucker, 376 F.3d 236, 238 (4th Cir.

2004). The jury may also rely on a theory of willful blindness

to establish intent “when ... the evidence supports an inference

of deliberate ignorance.” United States v. Zayyad, 741 F.3d 452,

463 (4th Cir. 2014) (citations omitted).

     Evidence         at     trial       established               that     Garnes      and    two

unlicensed      counselors,            Teresa       Marible          and    Sylvia      Jackson,

knowingly and willfully entered into an agreement to defraud the

North    Carolina          Medicaid      agency.        The          government        presented

evidence that Garnes submitted numerous reimbursement claims in

which she falsely represented that she personally had provided

services; that 90% of Garnes’s Medicaid reimbursements from 2009

to 2011 were for services provided by Marible and Jackson; and

that many of these claims were facially invalid. 4 This evidence

is   sufficient       to     establish      that       Garnes             had   knowingly      and

willingly    agreed         to   participate          in       a    fraudulent        healthcare

scheme   with    Marible         and    Jackson.      Accordingly,              we    affirm   the


     4
       For example, claimed therapy sessions exceeded 24 hours in
a day on at least 43 occasions.



                                                5
district court’s denial of Garnes’s motion for acquittal on the

conspiracy count.

                                                  B.

      To convict Garnes of making a false statement relating to a

health care benefit program, the government was required to show

that Garnes “knowingly and willfully made materially false or

fraudulent     statements         in    connection           with    the    delivery        of    or

payment for health care benefits, items, or services.” United

States   v.    McLean,      715    F.3d       129,       140      (4th   Cir.      2013).    “The

specific intent to defraud may be inferred from the totality of

the circumstances, and need not be proven by direct evidence.”

Id.   Garnes      asserts    that,          with       respect      to     each    count,        the

evidence establishes only that her statements were “careless and

negligent,” rather than knowing and willful.

      Having reviewed the record under the appropriate standard,

we conclude that the government presented sufficient evidence

from which a jury could find that each false statement with

which    Garnes    was   charged            was       made   knowingly       and    willfully.

Specifically,       on   each          of    the       ten     counts,      the     government

presented     evidence      of    at    least          one   of    the   following:     Garnes

submitted claims for services rendered in North Carolina when

she was in fact in a different state or country on the service

date; Garnes’s patient progress notes are inapplicable to the

patients to whom the claimed services were provided; the patient

                                                  6
notes     are     inconsistent        with     the        duration     of      the   claimed

services; or the claimed services were provided to patients who

testified that they never received services from Garnes. Any one

of    these     pieces   of    evidence       is    sufficient       to   establish      that

Garnes knowingly and willingly made false statements relating to

a     health    care     benefit     program.           Accordingly,      we    affirm   the

district court’s denial of Garnes’s motion for acquittal on the

false statement counts.

                                           III.

       Finally, Garnes argues that in calculating her sentencing

guidelines        range,      the    district           court   improperly       held    her

responsible       for      losses     caused       by     her   co-defendant,         Oriaku

Hampton-Sowell. This argument fails because the district court

was entitled to include the amount of losses caused by her co-

conspirators in calculating the range. The guidelines define a

defendant’s        relevant         conduct        to     include      “all      reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.” U.S.S.G. §1B1.3(a)(1)(B).

The    evidence     adduced     at    trial       was    sufficient       to   support   the

conclusion that Garnes and Hampton-Sowell were jointly engaged

in     criminal     activity,        and   that         Hampton-Sowell’s         fraudulent

billings were reasonably foreseeable to Garnes. Therefore, the




                                              7
district court did not err in calculating Garnes’s guidelines

range. 5

                              IV.

     Based on the foregoing, Garnes’s convictions and sentence

are hereby

                                                      AFFIRMED.




     5
       Garnes also contends that the district court erred in
ordering her to pay restitution for Hampton-Sowell’s fraudulent
charges. Under the Mandatory Victims Restitution Act, 18 U.S.C.
§ 3663A, “each member of a conspiracy that in turn causes
property loss to a victim is responsible for the loss caused by
the offense, not merely for the losses caused by a particular
conspirator’s overt acts.” United States v. Seignious, 757 F.3d
155, 161 (4th Cir. 2014) (citations omitted). Accordingly,
because Garnes was convicted of conspiracy to commit healthcare
fraud with Hampton-Sowell, Garnes’s restitution argument fails.



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