                              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
