                              PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 14-4798


UNITED STATES OF AMERICA,

                       Plaintiff - Appellant.

v.

AMIR A. BAJOGHLI,

                       Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:14-cr-00278-GBL-1)



Argued:   March 25, 2015                       Decided:   May 11, 2015


Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Reversed and remanded by published opinion. Judge Niemeyer
wrote the opinion, in which Judge Floyd and Senior Judge
Hamilton joined.


ARGUED: Paul Nathanson, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellant.   Peter Hugh White, SCHULTE
ROTH & ZABEL LLP, Washington, D.C., for Appellee.      ON BRIEF:
Dana J. Boente, United States Attorney, Matthew Burke, Assistant
United States Attorney, Katherine L. Wong, Assistant United
States   Attorney,  OFFICE  OF   THE  UNITED   STATES   ATTORNEY,
Alexandria, Virginia, for Appellant.   Joe Robert Caldwell, Jr.,
BAKER BOTTS LLP, Washington, D.C.; Kirk Ogrosky, Murad Hussain,
ARNOLD & PORTER LLP, Washington, D.C., for Appellee.




                               2
NIEMEYER, Circuit Judge:

     Dr.    Amir     Bajoghli,      a    board-certified         dermatologist,           was

indicted for executing a “scheme or artifice to defraud” when

billing public and private healthcare benefit programs during

the period from January 2009 through August 2012, in violation

of 18 U.S.C. § 1347, and for related offenses.                          The indictment

set forth, in 53 of its 60 counts, particular “executions” of

the fraudulent scheme.

     On September 30, 2014, several weeks before the scheduled

trial    date   of      October 22,      2014,      Bajoghli    filed      a    motion     to

strike as unduly prejudicial certain financial details alleged

in Paragraph 50 of the indictment; on October 13, he filed a

motion in limine to exclude evidence of post-scheme conduct that

the government intended to introduce to show his consciousness

of guilt; and on October 20, he filed a motion in limine to

exclude all evidence of the scheme that was not directly related

to one of the 53 specifically charged executions.                          The district

court    granted     all    three   motions,         the    latter   two       on   the   day

before the trial was scheduled to begin.                       On the same day, the

government      filed      this   interlocutory            appeal,   pursuant        to    18

U.S.C. § 3731, challenging the rulings.

     Because       we    conclude       that       the   district    court’s        rulings

unduly    restricted       the    latitude         reasonably    necessary          for   the

government to carry its burden of proof, we reverse and remand.

                                               3
                                                 I

       Bajoghli is the owner of the Skin and Laser Surgery Center,

a medical practice that operates from three offices in Virginia

and    one    in     Washington,         D.C.,       and     that     specializes          in   skin

diseases      and     the       performance       of       Mohs      micrographic          surgery.

According       to       the     indictment,          Mohs       surgery     is        a    “highly

lucrative,” “specialized surgical technique for the removal of

skin cancer from healthy skin” that is “generally performed on

sensitive areas of the body, such as the head and neck, where

preservation         of    healthy       tissue       and       cosmetic     appearance            are

particularly important.”

       On    August       12,    2014,    the    grand       jury     returned     a       60-count

indictment against Bajoghli, charging: 53 counts of healthcare

fraud, in violation of 18 U.S.C. § 1347; 6 counts of aggravated

identity      theft       committed       in     connection          with    the       scheme       to

defraud,      in     violation      of    18     U.S.C.         § 1028A;    and    1       count    of

obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2).

The    indictment         alleged        that    over       a    three-and-one-half             year

period --       from      January    2009       through         August     2012    --      Bajoghli

“knowingly and willfully execute[d] . . . a scheme and artifice

to    defraud      and    to    obtain,     by       means      of   materially        false       and

fraudulent pretenses, . . . money owned by and under the custody

and control of health care benefit programs, in connection with


                                                 4
the   delivery        of    health    care    benefits,       items,       and   services.”

More particularly, seventeen counts alleged executions of the

scheme in which Bajoghli routinely diagnosed patients with skin

cancer, even though they did not, in fact, have cancer, and then

performed       the    medically         unnecessary     Mohs       surgery      on    benign

tissue.     Fifteen          counts      alleged    executions       of    the   scheme    in

which    Bajoghli          directed      “unlicensed     and     unqualified          medical

assistants”       to       perform    wound       closures     on    the    Mohs      surgery

patients and then billed the healthcare benefit programs as if

he personally had performed or supervised the closures, thereby

claiming    more           money    than     he    was   entitled          to    under    the

reimbursement schedule.                Ten counts alleged executions of the

scheme in which Bajoghli billed for services that he claimed he

had personally performed when, in fact, they had been performed

by    non-doctors,           again       allowing      him     to      claim     a     higher

reimbursement than he would have been allowed to claim had he

disclosed    that       non-doctors        had     performed     the      services.       And

eleven    counts       alleged       executions     in   which      Bajoghli       submitted

bills    “for    preparing         and     analyzing     [skin      pathology]        slides”

when, in fact, he had personally performed neither service, but

instead had hired outside contractors to perform the services at

a cost far below the amount he claimed from the programs.

      Bajoghli         filed       three     pretrial        motions       to    limit    the

government’s evidence against him at trial:                            the September 30

                                              5
motion to strike allegations of certain financial details from

Paragraph 50 of the indictment; the October 13 motion in limine

to exclude evidence of post-scheme conduct, which the government

planned to introduce to show consciousness of guilt; and the

October 20 motion in limine to exclude any evidence that was not

directly     related      to    one   of   the   53    executions    specifically

charged in the indictment.

     In the September 30 motion, Bajoghli sought to strike from

Paragraph 50 the allegation that he “regularly billed the health

care benefit programs $300 to $450 per slide.”                       Paragraph 50

alleged in full:

          The defendant fraudulently submitted claims to
     patients’ health care benefit programs for preparing
     the permanent section slides and analyzing those
     slides, when he actually performed neither service.
     The defendant regularly billed the health care benefit
     programs $300 to $450 per slide, when he had paid the
     Ohio company and the dermatopathologist a total of
     approximately $15 per slide for actually rendering the
     services.

(Emphasis added).         Because healthcare benefit programs reimburse

physicians     at   a     predetermined        rate,    Bajoghli    claimed   that

evidence of what he billed would be unfairly prejudicial because

those amounts did not represent what he actually expected to

receive    from     the        programs.       The     district    court   granted

Bajoghli’s motion and, in doing so, also excluded, sua sponte,

any evidence of “the fees or payments Defendant allegedly made

to outside sources to perform” these services -- that is, the

                                           6
$15 per slide paid to outside contractors.                   The court stated

that    the    government     could    introduce   evidence    to   prove   that

Bajoghli “would have been paid less (or not at all) had the

claims not been materially false,” but that it could not state

the specific dollar amounts.

       In     the   October   13     motion,   Bajoghli    sought   to   exclude

evidence of actions that he had taken after the charged scheme

had ended, which the government planned to introduce at trial to

show his consciousness of guilt.                The government intended to

show that after Bajoghli was interviewed by law enforcement,

(1) he immediately stopped sending pathology slides to outside

contractors; (2) he stopped performing Mohs surgery without a

supporting biopsy; and (3) he deleted scheduling data for past

wound       repairs   that    were     performed   by     medical   assistants.

Bajoghli argued that this evidence was irrelevant; that it was

evidence of subsequent remedial measures, which is barred by

Federal Rule of Evidence 407; and that, if admitted at trial, it

would be unfairly prejudicial, in violation of Federal Rule of

Evidence 403.         The district court did not rule on this motion

until it ruled on the October 20 motion.

       In     the   October   20     motion,   Bajoghli    sought   to   exclude

“volumes of irrelevant, uncharged misconduct” evidence, as he

characterized it, that related to his fraudulent conduct during

the three-and-one-half year period of the scheme but that was

                                          7
not directly tied to any of the 53 charged executions.                                         He

argued that because this evidence was not directly relevant to

any    of    the        53    charged      counts,        it     was    therefore       improper

“[p]ropensity evidence” offered only to show the defendant’s bad

character, in violation of Federal Rule of Evidence 404(b).                                   He

also argued that by waiting until so close to the date of trial

to give him notice of its intent to introduce this evidence, the

government        failed       to     comply    with       the       notice    requirement     of

Federal Rule of Evidence 404(b)(2).

      On October 21, the day before the scheduled trial date, the

district court issued an order granting both the October 13 and

October      20    motions.           In   doing     so,       the    court    ruled,   without

explanation,         that       “[a]ll     testimony           is . . .       limited   to    the

53 charges         in    the     indictment,”          thus      excluding         evidence    of

Bajoghli’s uncharged conduct.                   And in excluding evidence of the

defendant’s post-scheme conduct, it gave as reasons that the

government had not provided adequate notice of its intent to

introduce         this       “prior    ‘bad     act’      evidence,”          as   required    by

Federal Rule of Evidence 404(b)(2), and, in any event, that the

evidence would be excluded under Federal Rule of Evidence 403,

as    “the    probative          value     of      [the        post-scheme]        evidence   is

substantially outweighed by the danger of unfair prejudice.”

      The     government         filed     this      interlocutory            appeal,   seeking

review of the district court’s pretrial evidentiary rulings.

                                                 8
                                           II

       The government first challenges the district court’s ruling

limiting       “[a]ll    testimony . . .         to     the     53     charges         of     the

indictment” and thus excluding evidence of Bajoghli’s uncharged

conduct in furtherance of the scheme during the three-and-one-

half    year    period.      It    notes   that       this     ruling       is   especially

debilitating       because        Bajoghli’s         criminal        intent       is        hotly

contested in this case, and it therefore contends that it needs

to     rebut    the     defense     that   the        charged        transactions            were

“isolated      mistakes”     by    demonstrating        that     it    did       not    merely

“cherry pick” aberrant transactions.                    As it argues, it must be

able     to     prove     the     entire        scheme,       including          Bajoghli’s

intentional and willful conduct in executing it.                         Such a burden,

it maintains, requires that it be allowed to introduce evidence

that, although perhaps not directly related to any of the 53

executions      charged,     is     nonetheless        relevant        to    proving         the

scheme itself.          The government warns that if it were not able to

offer evidence of uncharged executions in proving the scheme, it

would have to charge hundreds, if not thousands, of counts in

every large-scale healthcare-fraud case, such as this one.

       Bajoghli       maintains     that     the      district        court       correctly

concluded that the evidence at trial must relate to one of the

specifically      charged       executions      of    the     fraudulent         scheme       and

that “evidence of an uncharged fraudulent scheme should not be

                                           9
admitted.”       He asserts that the government’s brief paints with

too broad a brush, ignoring the 53 specific and discrete charges

it brought under § 1347.              As he argues, “the evidence at trial

must relate to a specific allegation of fraud that the jury will

have to consider.”            Because, as he contends, any evidence of

uncharged     conduct       would    be    only   “loosely       relevant”      to    the

charged      executions,      the     evidence    should     be     excluded         under

Rule 403      as     unfairly       prejudicial      and     under        Rule 404(b),

including Rule 404(b)(2)’s notice requirement, as “other acts”

evidence.

       The   scope    of    relevant      evidence   at    trial    is,    of   course,

dictated by the indictment.               In this case, however, Bajoghli’s

position reveals a misunderstanding of the nature of the charges

in the indictment and the scope of proof that is relevant.

       Section     1347    punishes    “[w]hoever     knowingly      and    willfully

executes . . . a scheme . . . to defraud any health care benefit

program”      when    delivering       healthcare     services.            18   U.S.C.

§ 1347(a)(1) (emphasis added).              A “scheme to defraud” is thus an

element of the offense.             See United States v. McLean, 715 F.3d

129,   137-38      (4th    Cir.   2013)    (“To   sustain    a     conviction        under

18 U.S.C. § 1347, the government [is] required to prove beyond a

reasonable doubt that [the defendant] knowingly and willfully

executed a scheme to defraud insurers by billing for medically

unnecessary procedures” (emphasis added)).                   While fraud can be

                                           10
committed    simply     by    engaging       in    an   isolated        transaction,     a

scheme to defraud requires a plot, plan, or arrangement that is

executed     by    a   fraudulent         transaction.            See     Black’s     Law

Dictionary    1546     (10th       ed.    2014)    (defining      “scheme”       as   “[a]

systemic plan; a connected or orderly arrangement”; or “[a]n

artful plot or plan, [usually] to deceive others”).

     In    this    case,     the    scheme       alleged   in     the    indictment    is

described as encompassing four types of conduct, beginning in

January 2009 and continuing through August 2012.                          And although

the indictment charged only 53 “executions” of the scheme in

53 separate       counts,     it     also    alleged       that     each       particular

execution    was    “part    of     the   scheme     and   artifice       to    defraud.”

Thus, the indictment charged that “for the purpose of executing

the aforementioned scheme and artifice,” described earlier to

have lasted from January 2009 through August 2012, the defendant

engaged in the particularly described fraudulent transactions.

(Emphasis added).          Because a scheme is an element of a § 1347

offense and because the specifically alleged three-and-one-half

year scheme is made part of each execution, evidence of the

entire scheme is relevant to proving each particular execution.

     It is important to recognize that just as all the overt

acts of a conspiracy need not be charged in an indictment, see

United States v. Janati, 374 F.3d 263, 270 (4th Cir. 2004) (“It

is well established that when seeking to prove a conspiracy, the

                                            11
government is permitted to present evidence of acts committed in

furtherance       of   the   conspiracy        even    though     they    are    not    all

specifically described in the indictment”), all executions of a

scheme likewise need not be charged, see United States v. Pless,

79 F.3d 1217, 1220 (D.C. Cir. 1996) (“That the government chose

to charge as the execution of the scheme only the three deposits

in National [Bank] does not reduce the boundaries of the scheme,

which the statute requires the government to prove. . . . [I]t

is not necessary for the government to charge every single act

of execution of the scheme in order to prove the whole scheme”).

Nonetheless, evidence of transactions and conduct not charged is

relevant to proving the existence of and the boundaries of the

conspiracy       or    scheme.        See    Janati,    374    F.3d   at 275      (“[T]he

government has the right and the burden to prove in its case-in-

chief   a    conspiracy      broader         than    the     individual      overt     acts

alleged     [and]      therefore       the    district        court   must      give   the

government       a    reasonable      opportunity       to    carry   this      burden”);

Pless, 79 F.3d at 1220 (“[T]he government is [not] artificially

limited     to   presenting      to    the    jury     only    that   portion     of    the

scheme that directly related to [the charged executions]”).                               A

scheme and a conspiracy thus are, for these purposes, similar

concepts.        See United States v. Lothian, 976 F.2d 1257, 1262

(9th Cir. 1992) (“Because an essential element of these offenses

is a fraudulent scheme, mail and wire fraud are treated like

                                             12
conspiracy in several respects”); United States v. Read, 658

F.2d    1225,   1239    (7th        Cir.    1981)      (“A   scheme     to   defraud   and

conspiracy      embrace    analogous,            but   not     identical,    concepts”);

United States v. O’Connor, 580 F.2d 38, 41-42 (2d Cir. 1978)

(equating “a continuing scheme” with a conspiracy); SEC v. Nat’l

Bankers Life Ins. Co., 324 F. Supp. 189, 195 (N.D. Tex. 1971)

(describing “the possibility of reading ‘scheme’ as synonymous

with    a   conspiracy”        in    a     federal       securities     statute).      We

therefore conclude that when the government charges a defendant

under § 1347 with a scheme to defraud and elects to charge only

some of the executions of that scheme, its election does not

limit    its    proof     to    only       the    charged       executions.      It    may

introduce other evidence of uncharged executions to prove the

scheme.

       To be sure, a district court still retains broad-ranging

discretion      to   manage      trials       and      limit    proof    that   is,    for

instance, overly duplicative.                    But, as we noted in Janati, its

discretion must be balanced by the need to give the government

adequate latitude to prove its case, especially in a large and

complex     healthcare-fraud          case       where    the    defendant’s    criminal

intent is placed at issue.                 See 374 F.3d at 273-74.           We conclude

that, in this case, the district court abused its discretion in

failing to give the government sufficient latitude to carry its

burden of proof.

                                             13
      In addition, it follows that because evidence of conduct

not   charged     in   a   specific    execution     may   be   relevant     to   the

nature and scope of a scheme charged under § 1347, such evidence

is intrinsic to the “scheme” element, and Rule 404(b) therefore

does not, as Bajoghli argues, regulate it as “other bad acts”

evidence.    See Unites States v. Grimmond, 137 F.3d 823, 832 (4th

Cir. 1998) (“[W]hen ‘other crimes, wrongs, or acts’ evidence is

relevant to establishing an element of the offense, Rule 404(b)

is not even implicated”).

      In   sum,   we   conclude       that   the   district     court   abused    its

discretion in limiting the government’s proof to that which is

directly relevant to one or more of the 53 executions charged in

the indictment, without taking into account the relevance of

uncharged    conduct       to   the    alleged     overarching     scheme.        The

government has the burden of proving a scheme to defraud and

Bajoghli’s knowing and willful conduct in executing the scheme.

And to that end, it must be allowed to offer evidence probative

of these elements, even if that evidence is not directly related

to one of the 53 executions.


                                         III

      The government next challenges the district court’s ruling

to exclude evidence of the defendant’s post-scheme conduct.                       It

seeks to introduce evidence (1) that “after being interviewed by


                                         14
law        enforcement,           [Bajoghli]          immediately       stopped        sending

pathology         slides”     to    outside      contractors;        (2) that       after    his

interview,         “the       defendant      stopped         performing       Mohs     surgery

without       a        biopsy”;     and    (3) that       the    defendant       “delet[ed]

scheduling data for the past wound repairs that were performed

by    medical       assistants.”           The    district      court    considered         this

evidence          to     be   “prior       ‘bad       act’    evidence”       governed        by

Rule 404(b) and excluded it on the ground that the government

had not provided Bajoghli with adequate notice, as required by

Rule 404(b)(2). ∗ Moreover, the court excluded this evidence under

Rule 403, concluding that its probative value was “substantially

outweighed by the danger of unfair prejudice . . . , confusing

the    jury . . . ,           and    waste       of     judicial      resources.”           The

government         argues     that    the    district        court    erred    in     applying

Rule 404(b) because the evidence is intrinsic to the charged

crimes; that is, it “bear[s] directly on the defendant’s intent

as    to     the       charged     fraud    (not      some    other     crime)       and    [is]



       ∗
       Even if Rule 404(b) were to apply, it is difficult to
understand how the government had not provided adequate notice
to Bajoghli. Bajoghli’s motion to exclude evidence of his post-
scheme conduct admitted as much, stating, “The government has
indicated that they plan to introduce evidence of changes in
procedures and practices in [his] offices after he became aware
that he was under criminal investigation, presumably to
demonstrate that the prior practices were illegal.”    Moreover,
in his motion to exclude this evidence, Bajoghli did not raise a
lack of notice as a ground for exclusion.


                                                 15
inextricably intertwined with how he committed the fraud and his

efforts to conceal it once he learned [of the] investigation.”

          Bajoghli       contends       that    Rule 404(b)         does    apply       to    this

evidence because, as he argued with respect to the evidence of

his uncharged conduct, it would not be “tied to any one of the

53 narrowly defined executions of healthcare fraud” and thus

would       not   be       “intrinsic”         to        the   charged    offenses.            More

particularly, he contends that “evidence of remedial measures,”

as    a    matter     of    law,    “cannot         be     ‘intrinsic’     to     any    of    [the

charged] offenses” because the remedial measures all occurred

after the period of time noted in the indictment as encompassing

the alleged fraudulent scheme.                           In addition, he contends that

its       admission       would    be    unfairly          prejudicial     under        Rule 403,

parroting the district court’s conclusion.

          Again, we agree with the government.                           As the government

points out, it intends to offer evidence of Bajoghli’s post-

scheme conduct to prove his knowledge and intent to defraud, as

is    required       by    § 1347.        For       instance,     that     Bajoghli      stopped

sending pathology slides to outside contractors after he learned

he was under investigation, but before federal agents had even

become aware of this practice -- as the government represents --

would      tend     to     prove    Bajoghli’s            fraudulent     intent    and       guilty

knowledge with respect to this aspect of the scheme.                                Similarly,

the government notes that Bajoghli “intends to challenge [the

                                                    16
charge     of    fraudulent      Mohs    surgeries]          by    asserting      that    he

exercised        reasonable      medical        judgment      in        performing     Mohs

surgeries and that any errors were the product of innocent . . .

mistakes.”       Thus, it reasons, evidence that Bajoghli stopped his

practice of performing Mohs surgeries without first reviewing

biopsies once he learned of the investigation would tend to show

that he knew the accepted standard of care for diagnosing skin

cancer     and    had    deliberately      chosen       to    disregard       it.        And

finally, as the government notes, evidence that Bajoghli deleted

scheduling data from his computers -- data that revealed who had

actually    performed         wound-repair       procedures        --    would    tend    to

refute his claim that this aspect of the fraud resulted from

honest     billing       mistakes.         Cf.     McLean,         715    F.3d    at     139

(concluding that evidence that the defendant “attempted to shred

patient files subpoenaed” by the government was probative that

the defendant knew he “had something to hide”).                            The proffered

evidence therefore would be probative to prove knowledge and

intent,     which       are   elements     of     the   crimes          charged   in     the

indictment.        And because Rule 404(b) does not apply to conduct

that is intrinsic to the charged crime, the district court erred

in applying the rule to this evidence.                        See United States v.

Basham, 561 F.3d 302, 326 (4th Cir. 2009) (“The Rule 404(b)

inquiry . . . applies only to evidence of other acts that are



                                           17
‘extrinsic to the one charged’” (quoting United States v. Chin,

83 F.3d 83, 87 (4th Cir. 1996))).

       Bajoghli       nonetheless        argues      that    his    post-scheme      conduct

cannot    be    intrinsic       to    the     charged    offenses         because    it    took

place after the end of the period of activity charged in the

indictment.          But it simply does not follow that conduct that

takes place after the end of the period of activity charged in

the    indictment      is     --    as   a    matter    of    law    --    subject    to    the

requirements of Rule 404(b).                  In fact, our case law demonstrates

that simply because a defendant’s conduct takes place outside

the time frame of the activities charged in the indictment does

not,    as     Bajoghli       argues,        automatically         render    that    conduct

extrinsic       to    the     charged        offense    and    therefore       subject      to

Rule 404(b).          See United States v. Kennedy, 32 F.3d 876, 885

(4th Cir. 1994) (“The basic flaw in [the defendant’s] argument

is that . . . [it] erroneously assumes that all evidence falling

outside      the     charged       conspiracy       period    necessarily      involves       a

separate,       unrelated          offense     subject        to    the     strictures      of

[Rule 404(b)].          It is well-established, however, that the mere

fact that the evidence involved activities occurring before the

charged      time     frame    of    the     conspiracy       does    not    automatically

transform       that        evidence         into    ‘other        crimes’     evidence”).

Instead, conduct that takes place outside the time frame of the

charged offense can avoid having to comply with the requirements

                                               18
of    Rule 404(b)       where         it       is,    inter        alia,     “relevant       to

establishing an element of the offense.”                             Grimmond, 137 F.3d

at 831-32.       And, as we concluded above, Bajoghli’s post-scheme

conduct is relevant to proving his fraudulent intent and guilty

knowledge.

       The   district      court’s         additional       ruling    --     that    Rule 403

requires exclusion of the evidence because its probative value

is substantially outweighed by the danger of unfair prejudice

and    other     concerns       --    reflects        a    misunderstanding          of     what

constitutes       unfair      prejudice           under     Rule 403.         Once     it     is

recognized that evidence is probative of an element of the crime

charged, “the balance under Rule 403 should be struck in favor

of    admissibility,          and      evidence           should     be     excluded        only

sparingly.”         United States v. Aramony, 88 F.3d 1369, 1378 (4th

Cir. 1996); see also United States v. Siegel, 536 F.3d 306, 319-

20    (4th   Cir.    2008).          And    in    this     context,       unfair    prejudice

“speaks to the capacity of some concededly relevant evidence to

lure the factfinder into declaring guilt on a ground different

from proof specific to the offense charged.”                              Basham, 561 F.3d

at 327 (emphasis added) (quoting Old Chief v. United States,

519 U.S. 172, 180 (1997)) (internal quotation marks omitted).

Neither      Bajoghli     nor    the       district        court    has    identified        any

ground    that    would    support         a     finding    of     guilt    different       from

proof that is specific to the offense charged.

                                                 19
     Because       the   district       court     misapplied         Rule 404(b)        and

Rule 403     in      excluding     evidence       of      Bajoghli’s       post-scheme

conduct, it abused its discretion.


                                          V

     Finally,      the   government      challenges         the     district     court’s

ruling to exclude evidence that, despite receiving between $100

and $130 per slide from healthcare benefit programs based on his

claim that he both prepared and analyzed his patients’ pathology

slides himself, Bajoghli paid outside contractors only $15 per

slide   to    perform    those     tasks.      The     government       contends    that

evidence     of   financial      gain   “is     critical      in    a   fraud    case    to

establish a defendant’s intent to defraud.”                        It argues that the

arrangement       between   Bajoghli      and     the     outside       contractors      is

“part and parcel of proving this aspect of the fraud” and that

“an essential part of this arrangement was the amount that the

defendant     paid    them.”       According         to   the   government,        “[t]he

substantial       disparity    between      the      amount     that    the     defendant

received, and what he paid” can only “underscore[] [Bajoghli’s]

motive for this intentional deception.”

     Bajoghli contends that evidence of what he paid the outside

contractors is irrelevant, and thus he urges us to affirm the

district court’s ruling to exclude it.                     According to Bajoghli,

“this case is about billing and whether or not the billing was


                                          20
false.”      Because “[a]ny amounts paid to outside contractors were

not part of the alleged misrepresentations in bills submitted to

insurers,” those amounts, he argues, “were not material to the

charged      offenses       of        executing           healthcare          fraud       schemes     by

submitting false claims.”

       We agree with the government.                            Because a violation of the

healthcare fraud statute requires knowing and willful conduct,

see    18      U.S.C.       § 1347(a),              the     government             must     establish

Bajoghli’s intent to defraud.                       United States v. Godwin, 272 F.3d

659, 666 (4th Cir. 2001).                       And evidence of financial gain is

particularly         probative            in    a     fraud       case        to    establish       the

defendant’s      intent         to    defraud.            See,        e.g.,    United      States     v.

Beverly,      284    F.    App’x       36,      40    (4th       Cir.    2008)      (per     curiam);

accord      United    States         v.    Davis,         490    F.3d    541,       549    (6th     Cir.

2007); United States v. Dearing, 504 F.3d 897, 901 (9th Cir.

2007) (endorsing the Sixth Circuit’s declaration in Davis that

evidence of profits can serve as indirect proof of one’s intent

to defraud); United States v. Wheeler, 889 F. Supp. 2d 64, 68

(D.D.C. 2012) (“In a § 1347 [healthcare-fraud] case, ‘intent [to

defraud] can be inferred . . . from profits’” (quoting Dearing,

504 F.3d at 901)).

       Moreover,          the        district         court’s          ruling       allowing         the

government to introduce evidence that the defendant “would have

been    paid    less       (or       not       at    all)       had     the    claims       not     been

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materially   false”   simply   does    not   allow    the   government   to

present its case with sufficient detail and narrative.            Cf. Old

Chief, 519 U.S. at 183 (recognizing “the offering party’s need

for evidentiary richness and narrative integrity in presenting a

case”).

     We conclude, accordingly, that the district court abused

its discretion in excluding this evidence.

                                                     REVERSED AND REMANDED




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