                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
