                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 13-4298


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HAMADA MAKARITA,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:12-cr-00223-LMB-1)


Submitted:   October 21, 2013              Decided:   June 26, 2014


Before TRAXLER, Chief Judge, and GREGORY and THACKER, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Peter D. Greenspun, Jonathan Shapiro, Mikhail N. Lopez,
GREENSPUN SHAPIRO P.C., Fairfax, Virginia, for Appellant.   Dana
J. Boente, Acting United States Attorney, Danya E. Atiyeh,
Special Assistant United States Attorney, Mazen Basrawi, Special
Assistant United States Attorney, Gene Rossi, Assistant United
States   Attorney,  OFFICE   OF  THE  UNITED   STATES  ATTORNEY,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Appellant Hamada Makarita (“Appellant”) was convicted

after    a    jury   trial    of    one     count      of     conspiracy         to    illegally

dispense       controlled         substances,          five       counts        of     illegally

dispensing      controlled         substances,         one     count       of    health          care

fraud, and one count of aggravated identity theft.                                   He appeals,

raising three issues: (1) the district court should have granted

his motion for a new trial based on the Government’s alleged

Brady    v.    Maryland,     373     U.S.    83     (1963),         violations;            (2)   the

evidence presented at trial was insufficient to convict him; and

(3) cumulative error deprived him of a fair trial.                                         We have

reviewed the record and find no reversible error.                                Accordingly,

we affirm.

                                             I.

              Appellant,      a    dentist,       owned       and    operated          a    dental

practice in Oakton, Virginia, called “Fixasmile,” specializing

in cosmetic dentistry.              On May 24, 2012, Appellant was charged

in   a   15-count      indictment         with    one       count     of    conspiring            to

dispense      controlled      substances,           in      violation       of        21    U.S.C.

§§ 841(a)(1)         and    846    (Count        1);     12       counts    of        dispensing

controlled substances, in violation of 21 U.S.C. § 841(a)(1)

(Counts 2-13); one count of health care fraud, in violation of

18   U.S.C.     §    1347    (Count       14);    and       one    count        of    aggravated

identity theft, in violation of 18 U.S.C. § 1028A (Count 15).

                                             2
The   indictment        charged     that     from      2007    to    2012,       Appellant

“distributed      and    dispensed    thousands         of    dosages      of    scheduled

medication, including, but not limited to, Dilaudid, Percocet,

Vicodin, Fentanyl, Valium, Xanax, and other prescription pills,

to    patients,     employees,        and        girlfriends,        all        without   a

legitimate   dental       purpose    and     beyond     the    bounds       of   a   dental

practice.”      J.A. 33. *    Further, the indictment charged Appellant

with fraudulently billing the health care insurance provider,

AETNA, for dental services he provided to his family members by

billing these services under the name of another dentist.

           Appellant’s jury trial began on November 5, 2012, and

on November 16, 2012, the jury returned guilty verdicts as to

Counts 1-3, 10, and 12-15.            The jury found Appellant not guilty

on the remaining seven specific distribution counts.                              On April

12, 2013, Appellant was sentenced to 25 months imprisonment.

                                            A.

           At trial, the Government’s witnesses included, Karen

Derder,   Appellant’s        former        office      manager;      Janet       Williams,

Appellant’s current office manager; Janet Brumbaugh, Appellant’s

patient   and    former    girlfriend;           and   Masooda      Azad,    Appellant’s

former dental assistant.             The Government also presented expert


      *
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                            3
testimony for each of the distribution counts from Dr. Lawrence

Singer.       Below is a summary of the evidence presented to support

each count of conviction.

                                                1.

                                             Count One

               Count 1 charged Appellant with conspiracy to illegally

dispense       controlled            substances      by    directing           “employees     to

pharmacies to pick up filled prescriptions written in the names

of     employees         and     patients,       and      further    instruct[ing]           the

employees to illegally distribute the prescription medications

back    to    him    for       his   personal     use     and    further       distribution.”

J.A.    35.         Karen      Derder,       Appellant’s        former    office       manager,

testified that on April 23, 2009, she filled a prescription from

Appellant for Fentanyl patches and witnessed him apply one of

the patches to his body at his dental office.                                  Moreover, Ms.

Derder       testified      that       she   printed      multiple       prescriptions       for

controlled substances from the office computer for Appellant’s

various family members, patients, and friends at the behest of

Appellant.

               Masooda         Azad,    Appellant’s        former       dental     assistant,

testified that on July 26, 2007, Appellant wrote a prescription

for    Valium       in   her     name    and    instructed        her     to    pick    up   the

medication and return it to him so he could distribute it to

Reem Hammoud, his girlfriend.                    Ms. Azad also testified that on

                                                 4
January 24, 2008, Appellant wrote a prescription for Vicodin in

her name and instructed her to pick it up and return it to him

for his own personal use.                According to Ms. Azad, she discovered

for the first time during the investigation of this case from a

Virginia Prescription Monitoring Program (“PMP”) report shown to

her by a federal agent that Appellant had written several other

prescriptions       in       her    name    which    were    filled      at        various

pharmacies.     Ms. Azad testified when she called Appellant to ask

why federal agents were inquiring into her prescription history,

he instructed her to tell the federal agents that he had given

her some pain medication.                Ms. Azad testified this confused her

because the only pain medicine Appellant had given her for her

own use had been topical medication for a mouth sore.

                                            2.

                               Counts Two and Three

            Counts       2    and    3     charged   Appellant    with        illegally

distributing       or    dispensing         controlled      substances        to     Janet

Brumbaugh     on     November        13,     2007,   and     January     23,         2008,

respectively.        Ms. Brumbaugh testified that she began seeing

Appellant for dental services in 2002, and her relationship with

him became romantic in 2007.                According to Ms. Brumbaugh, after

their relationship turned romantic, she would call Appellant to

get prescriptions for Vicodin and Valium for recreational use,

and she would consume these controlled substances as well as

                                             5
alcohol while on dates with Appellant.                          It was her understanding

that, in order to obtain the prescriptions, she had to “hang

out” with Appellant.               J.A. 551.           Ms. Brumbaugh testified that on

at    least    one        of   these   dates       she       combined       the   Vicodin       with

alcohol       and    blacked       out.       Either         the     next    day     or    shortly

thereafter, Appellant sent her photographs that he had taken of

her while she was incapacitated, which depicted her nude except

for a jacket and a single boot, lying apparently unconscious on

his   bed.          The    photograph        was       admitted      into     evidence.          Ms.

Brumbaugh      further           testified    that       she    was     suffering         from    no

dental pain at the time and did not tell Appellant she was

suffering from any dental pain; the medications were solely for

recreational purposes, and Appellant was well aware that she was

not using the medications for a legitimate medical purpose.

               Dr.        Lawrence        Singer,         the        Government’s          expert,

testified that he reviewed Janet Brumbaugh’s patient file and in

2007, Ms. Brumbaugh had minor dental procedures performed that

would result in “mild discomfort” at most.                             J.A. 465.          Further,

after reviewing Ms. Brumbaugh’s record from the Virginia PMP,

Dr.    Singer        testified       that     between         2007    and     2008     Appellant

prescribed          Ms.     Brumbaugh       “several         hundred        pills     total”      in

prescriptions             that    “were      maybe       a    couple        dozen,”       and    Ms.

Brumbaugh’s patient record was devoid of any clinical notes to

support this treatment.                   J.A. 466.            Specifically, Dr. Singer

                                                   6
testified that the Vicodin prescriptions Appellant wrote for Ms.

Brumbaugh on November 13, 2007, and January 23, 2008, were not

written within the bounds of dental practice for a legitimate

dental purpose because there were no records, notes, treatment,

or anything else in the patient’s records to indicate that this

treatment was required or even that Ms. Brumbaugh had any dental

services performed by Appellant.

                                 3.

                             Count Ten

            Count 10 charged Appellant with illegally distributing

or dispensing a controlled substance to Karen Derder on April

23, 2009.    Ms. Derder testified Appellant wrote a prescription

for several boxes of Fentanyl patches in her name and asked her

to fill it for his own personal use.     According to Ms. Derder,

Appellant hand wrote the prescription, and she dropped it off at

a pharmacy the night of April 22, 2009, and picked it up before

work the next morning.     Ms. Derder testified that upon arriving

at work the morning of April 23, 2009, she gave the three boxes

of Fentanyl patches to Appellant and witnessed him apply one to

his body.    Appellant himself corroborated Ms. Derder’s account.

Appellant testified, “I was hoping this was something I could

use as a treatment modality to use for any oral pain.       That’s

why I used it on myself.    I said, ‘I want to see if it helps my

back.’”   J.A. 1091.

                                   7
                 Ms. Derder not only worked for Appellant, but was also

his patient.           The Government’s expert, Dr. Singer, reviewed Ms.

Derder         patient    file    and       record    from    the    Virginia      PMP.         Dr.

Singer         testified       that    between       2007    and    2012    Appellant      wrote

prescriptions for Ms. Derder for what “[a]ll amounted to a few

hundred         --   several     hundred       doses    of     narcotics.”          J.A.    471.

Specifically,            Dr.    Singer      testified        that    on    April    23,    2009,

Appellant prescribed Ms. Derder Fentanyl patches, which are a

“slow-release formulation of Fentanyl” in a patch applied to the

skin.          J.A. 473.         According to Dr. Singer, this medicine is

outside the scope of dentistry or oral surgery and “is only

appropriate for a chronic pain patient who has cancer pain or .

.    .    something       extremely         debilitating       and    may    be    chronically

ill.”          J.A. 474.       Dr. Singer testified that the April 23, 2009

Fentanyl patch prescription Appellant wrote for Ms. Derder was

not       written      within         the    bounds     of    dental        practice      for    a

legitimate dental purpose because there were no clinical notes

in       her    file   that      would      support     this       treatment      and   because

Fentanyl has no role in dentistry as it “is a chronic pain

medication of the highest order.”                     J.A. 475.




                                                 8
                                             4.

                         Counts Twelve and Thirteen

              Counts    12   and   13       charged     Appellant   with    illegally

distributing     or    dispensing       a    controlled      substance     to    Masooda

Azad on July 26, 2007, and January 24, 2008, respectively.                            Ms.

Azad was not only Appellant’s dental assistant, she was also his

patient.       Ms. Azad testified that on two separate occasions,

Appellant wrote prescriptions for controlled substances in her

name,   and    then    asked   her   to      go    to   a   pharmacy,    pick    up   the

medication, and bring it back to him -- once for Reem Hammoud,

Appellant’s girlfriend, and once for his own use.                               Ms. Azad

testified     that     the   first   time         she   complied,   and    brought     a

prescription for Valium back to Appellant.                    However, she refused

to fill the second prescription, which was for Vicodin.                            Janet

Williams, Appellant’s current office manager, confirmed that the

January 2008 prescription for Vicodin was written in Appellant’s

handwriting.

              Dr. Singer, the Government’s expert, again testified

that he reviewed Ms. Azad’s patient file and record from the

Virginia PMP.         Dr. Singer testified that there were no clinical

notes to support Appellant’s prescription of Valium on July 26,

2007.   Dr. Singer emphasized that Ms. Azad was not Appellant’s

patient until approximately a year after this prescription was

written.      Dr. Singer also testified that there were no records

                                             9
to support Appellant’s January 24, 2008 prescription of Vicodin

to Ms. Azad.         Dr. Singer opined that these prescriptions were

not     written     within    the     bounds       of    dental       practice        for     a

legitimate    dental        purpose    “[b]ecause          there’s        no    treatment,

there’s no records, and this is a scheduled substance that has a

high potential for abuse, so there’s no treatment or records to

support this or even that the patient was a patient of record at

that time.”       J.A. 462-63.

                                         5.

                           Counts Fourteen and Fifteen

            Counts 14 and 15 charged Appellant with health care

fraud for billing AETNA, a health care insurance provider, for

services he provided to his family members and for aggravated

identity    theft,     respectively.           A    representative             from   AETNA,

Kathy     Richer,     testified       that     AETNA       has     an     administrative

services contract with World Bank.                      According to Ms. Richer,

this means that World Bank pays their own employees’ claims, but

AETNA    administers       the   contract      or       coverage      policy     and    pays

claims according to the plan’s guidelines.                        In other words, an

employee’s    insurance       “claim    is     submitted         by   a   provider,         and

[AETNA] pay[s] the claim, but it’s actually World Banks’s money

that’s    paying     the    claim.”      J.A.       403.      After       reviewing         the

medical insurance plan between World Bank and its employees and

the contract between World Bank and AETNA, Ms. Richer testified

                                         10
that there is a specific exclusion in the documents “stating

that services cannot be rendered to any family member or person

related by blood or marriage” by a provider.                     J.A. 404; see also

J.A. 1266.

             From    2007   to   2012,     World    Bank’s       AETNA-administered

heath insurance plan provided dental insurance to Appellant’s

parents.     Karen Derder, Appellant’s former office manager, and

Janet   Williams,         Appellant’s      current        office    manager,      both

testified     that    Appellant      was    aware    of    a     provision   in   his

parent’s health insurance plan that excluded from reimbursement

procedures performed on a patient by a doctor or dentist who was

that patient’s family member.               The two also testified that in

order   to   circumvent      this    provision,      Appellant       submitted     his

requests for reimbursement for work done on his parents in the

name of Dr. Sameh Kassem, a dentist who had previously been

employed by the practice.               Ms. Williams and Ms. Derder both

testified that when checks arrived from AETNA made out to Dr.

Kassem, Appellant would forge Dr. Kassem’s signature in order to

sign the check over to himself, and then deposit the check,

sometimes    in     his   personal   bank       account    and   sometimes   in    the

business bank account.           Dr. Kassem testified and confirmed that

the signatures on the checks were not his, that he had not

authorized Appellant to bill in his name or to sign checks on

his behalf, and that he had not performed any dental work on

                                           11
Appellant’s       parents.       According      to      Ms.   Richer,       Appellant

received approximately $91,000 to which he was not entitled by

engaging in this particular billing practice.

                                         B.

              After trial, Appellant filed motions for acquittal and

for a new trial.         These motions alleged the Government committed

a number of Brady v. Maryland, 373 U.S. 83 (1963), discovery

violations.        Specifically,       Appellant      claimed       the    Government

failed to inform him that Karen Derder believed that in exchange

for    her   testimony     in   this   case,    Special       Agent       Parker,   the

federal agent investigating this case, would protect her from

prosecution on unrelated charges for embezzlement in Culpeper

County,      Virginia.       Appellant   further      claimed       the    Government

failed to disclose the result of a negative drug test performed

by    Pre-Trial    Services     on    Appellant      the    day    of     his   arrest.

Finally,      Appellant      argued    the    Government          was   required    to

subpoena Ms. Derder’s bank records and provide them to him.                         The

district court held two post-trial evidentiary hearings before

ultimately denying Appellant’s motions.

              Although the Government did not present any evidence

in    response    to   Appellant’s     latter     two      arguments,      i.e.,    the

negative drug test and Ms. Derder’s bank records, it argued to

the district court that it had neither in its possession and,

therefore, the evidence could not be considered Brady evidence.

                                         12
The Government argued that the drug test did not fall under the

purview    of   Brady       because      Appellant’s      counsel     had   actual

knowledge of the negative result from Appellant himself and the

result of the test was not within the control of the Government.

The Government also argued that Ms. Derder’s bank records were

not subject to Brady because they were also not in its control.

Further, according to the Government, the bank records would

have been cumulative impeachment material.

            With   regard     to   the      Culpeper   investigation,       Special

Agent Parker testified at the first post-trial hearing on March

15, 2013, that he had instructed Ms. Derder to cooperate and be

truthful    with      the   Culpeper      investigators      in     order   to     be

protected under her immunity agreement with the government.                       On

cross-examination, Special Agent Parker admitted that Ms. Derder

likely believed “that truthful equaled no prosecution.”                          J.A.

1431.     However, Ms. Derder testified that she believed that her

federal immunity agreement in this case would not affect the

Culpeper investigation at all “[b]ecause the federal immunity

only applied to the trial of [Appellant].                  It doesn’t apply to

any context outside of that.”                J.A. 1506.      Further, Detective

Maria Rodriguez, a detective for the Culpeper County Sheriff’s

Office    and   the    detective      who     investigated    the    embezzlement

accusations against Ms. Derder, testified that the federal case

had no impact on her actions with regard to the investigation.

                                         13
             At the close of the second hearing, the district court

denied Appellant’s motions.      With regard to Appellant’s motion

for a new trial, the district court stated,

             the ultimate question about whether or not
             to grant a new trial is has there been a
             manifest injustice, has an innocent person
             been   wrongly  convicted,  and  you  don’t
             lightly set aside a trial unless there are
             some really significant problems such that
             if you look at the entire record, not just
             one little piece here and one little piece
             there in isolation, if you look at the
             entire record, does it suggest that there
             was, in fact, so many defects that the case
             itself has to be retried.

J.A. 1590.     Ultimately, the district court concluded Appellant’s

alleged Brady violations did not meet this standard.

          [M]ost of the issues that you have taken up
          in my view have to do with credibility and
          at most would have been cumulative of the
          significant amount of evidence that the
          . . . defense was able to present that would
          undermine the credibility of not just Derder
          but of the agent as well.
               And,   you    know,   again,   [Appellant’s
          counsel]   put    on   very   effective   cross-
          examination    of    all    the   [G]overnment’s
          witnesses, and they all had [a] certain
          amount of warts, but overall between the
          documentary evidence that was at the trial
          and the testimony of the witnesses, I think
          there is no basis to grant the motion for a
          new trial.      So I’m denying the motion
          . . . .

J.A. 1612.

          The defendant now appeals to this Court.




                                  14
                                                II.

            Appellant          first     argues       the    district       court    erred    by

denying his motion for a new trial based on the Government’s

alleged Brady v. Maryland, 373 U.S. 83 (1963), violations.                                  Rule

33 of the Federal Rules of Criminal Procedure provides, such a

motion may be granted “if the interest of justice so requires.”

Fed. R. Crim. P. 33(a).                “We review the district court’s denial

of   a   motion      for   a    new      trial       under    an    abuse    of     discretion

standard.”      United States v. Bartko, 728 F.3d 327, 334 (4th Cir.

2013).     “It is an abuse of discretion for the district court to

commit a legal error -- such as improperly determining whether

there    was    a    Brady      violation        --     and    that     underlying       legal

determination is reviewed de novo.”                     Id. at 338.

            Brady held “that the suppression by the prosecution of

evidence    favorable          to   an    accused       upon       request    violates       due

process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution.”         373 U.S. at 87.                To succeed on his Brady claim,

“the burden rest[s] on [Appellant] to show that the undisclosed

evidence       was   (1)       favorable        to     him     either       because    it    is

exculpatory, or because it is impeaching; (2) material to the

defense,    i.e.,     prejudice          must    have       ensued;   and     (3)    that    the

prosecution had materials and failed to disclose them.”                                Bartko,

728 F.3d at 338 (internal quotation marks omitted).

                                                15
            Appellant argues the Government violated Brady when it

(1)   failed     to     provide     information         about   Karen    Derder’s

understanding of her federal immunity agreement; (2) failed to

produce the result of Appellant’s negative drug test; and (3)

failed to provide bank records showing Ms. Derder’s health care

fraud.

                                         A.

                         Federal Immunity Agreement

            According     to    Appellant,      the     Government      suppressed

favorable, material evidence as to Karen Derder’s understanding

of her federal immunity agreement.              Appellant characterizes Ms.

Derder as a serial perpetrator of frauds and the Government’s

key witness against him.          Appellant contends that at the time of

the   trial,    Ms.    Derder     was   under   strong     suspicion     by   state

authorities     in    Culpeper,    Virginia,     for    embezzlement     from   her

daughter’s basketball team fund.              Appellant further asserts this

embezzlement      occurred      well    after     Ms.     Derder    reached     her

cooperation agreement with the Government, which provided her

immunity from federal prosecution for her drug and fraud crimes.

According to Appellant, as developed in the post-trial hearings,

it was made clear to Ms. Derder by Special Agent Parker that as

long as she cooperated with the Culpeper authorities, she was

protected      from    prosecution      from    the     potential    charges    in

Culpeper.      Appellant argues that this understanding was withheld

                                         16
from him, and he was not permitted to pursue questions relating

to it on cross examination.

              The    Government       disputes      Appellant’s           allegations

claiming they did not suppress the evidence because it did not

exist.    According to the Government, Ms. Derder had no belief

that she would be protected from prosecution by the Culpeper

authorities.        The Government further argues that even if Ms.

Derder possessed some undisclosed perceived benefit, it did not

violate Brady because the evidence was not material as it would

have been cumulative impeachment of a witness whose credibility

had already been thoroughly challenged.

              It is well settled law that “[i]mpeachment evidence,

. . . as well as exculpatory evidence, falls within the Brady

rule.     Such evidence is evidence favorable to an accused, so

that,    if    disclosed    and     used    effectively,       it   may    make   the

difference between conviction and acquittal.”                   United States v.

Bagley, 473 U.S. 667, 676 (1985) (internal quotation marks and

citations omitted).         Additionally, “[w]hen the reliability of a

given witness may well be determinative of guilt or innocence,

nondisclosure       of   evidence    affecting     credibility        falls    within

this general rule.”         Giglio v. United States, 405 U.S. 150, 154

(1972) (internal quotation marks omitted).                 To succeed on his

claim,    however,       Appellant    must      still   show    the       suppressed,

favorable evidence is material.                 See id.    Materiality exists

                                           17
under the Brady rule “if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of

the proceeding would have been different.”                   Bagley, 473 U.S. at

682.    “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”                 Id. (internal quotation

marks omitted).

            Appellant’s        argument    with    respect       to    Karen   Derder’s

federal immunity agreement fails for two reasons.                           First, Ms.

Derder specifically testified at the post-trial hearings that

she had no belief she would be protected from prosecution in the

Culpeper matter “[b]ecause the federal immunity only applied to

the trial of [Appellant].”            J.A. 1506.           Second, even assuming

Ms.    Derder    had     the    requisite        belief    and        the   Government

suppressed      it,    Appellant’s   argument       nonetheless          fails   as   to

materiality.          Appellant failed to demonstrate that there is a

reasonable probability that the outcome of the trial would have

been different had the defense been able to impeach Ms. Derder

using this additional material.

            Appellant’s         counsel        conducted     a        thorough   cross

examination of Ms. Derder.                For example, Appellant’s counsel

impeached her on the following:

  •    She was terminated by Appellant for making a false claim to

       an insurance company in 2010;



                                          18
  •     She    submitted         a   false       resume   to    a     doctor       in    Manassas,

        Virginia, in 2010;

  •     She billed an insurance company fraudulently for work not

       done     on    a    patient         and    received      the    money       herself           for

        personal use;

  •     She forged Appellant’s signature on prescriptions;

  •     She made inconsistent statements to the grand jury;

  •     She    made    fraudulent           insurance       claims     on     behalf         of     her

        sister;

  •     She was convicted of writing false checks in 1991; and

  •     She allegedly embezzled from Appellant’s 401(k) plan.

Thus,    as    the     district       court       pointed      out    in    its     ruling,          Ms.

Derder was zealously impeached with a variety of material, and

this alleged          additional       area       of   impeachment,         even        if     it   did

exist,        would       have       simply       been      cumulative.                 Therefore,

Appellant’s       claim      fails         because     there     is    not     a    “reasonable

probability          that,    had      the       evidence      been     disclosed            to     the

defense,       the        result      of     the       proceeding          would        have        been

different.”          Bagley, 473 U.S. at 682.

                                                  B.

                             Drug Test and Bank Records

               Next, Appellant argues the Government violated Brady

when    it    failed       produce     the       result   of    a     negative          drug      test,


                                                  19
undermining its theme that Appellant abused drugs, and when it

failed to produce Karen Derder’s bank records.                   According to

Appellant, the Pre-Trial Services drug test taken on the day of

Appellant’s arrest was negative, but the Government failed to

provide the defense with this exculpatory evidence until the

close   of    evidence.        The    jury   was   eventually     given   this

information in the form of a jury instruction from the court.

However, the Government had suggested throughout the trial that

Appellant had Vicodin or hydrocodone in his system when he was

arrested.     Furthermore, Appellant contends the Government should

have produced Ms. Derder’s bank records.             Instead, Appellant was

forced to subpoena the records himself, which he did not receive

until the eve of closing argument.

             The Government argues that the drug test was not in

the possession or control of the Government or any member of the

trial team, and it did not have the test result in its file.

Special Agent Parker mistakenly testified (and mistakenly told

Appellant during his arrest) that the test was performed by the

United States Marshals.         According to the Government, the test

was actually performed at the courthouse by Pre-Trial Services,

an arm of the court, and it was not aware of the result; and

therefore,    according   to    the    Government,    it   had   no   duty   to

disclose the result.       Additionally, the Government argues Ms.

Derder’s bank records were also not in its possession, and the

                                       20
Government is not required to affirmatively seek out information

not already in its possession and deliver it to the defendant.

               Appellant’s claims with regard to the drug test and

Ms. Derder’s bank records fail for the fundamental reason that

Appellant failed to demonstrate “that the prosecution had [the]

materials and failed to disclose them.”                       Bartko, 728 F.3d at

338.     Brady does not require the Government to investigate the

defense’s theory of the case or create evidence that might be

helpful       to   the   defense.         This   fundamental        element       of    Brady

requires Appellant to show that the Government “suppressed” the

evidence in question, either willfully or inadvertently.                                  See

United States v. King, 628 F.3d 693, 701-02 (4th Cir. 2011).

Simply, “[s]uppressed evidence is ‘information which had been

known to the prosecution but unknown to the defense.’”                                 Spicer

v.   Roxbury       Corr.   Inst.,    194     F.3d    547,     557   (4th        Cir.    1999)

(quoting       United    States     v.    Agurs,    427   U.S.      97,    103    (1976)).

Neither the drug test result nor Ms. Derder’s bank records were

suppressed by the Government as they were not information known

to the prosecution but unknown to the defense.                            The Government

is     only    obligated     to     disclose        favorable       evidence       in    its

possession.        Therefore, Appellant’s claim here fails.

               Moreover,     the         district     court      gave       a     curative

instruction to the jury concerning the result of Appellant’s

drug test.         The district court’s instruction informed the jury

                                            21
of the negative result of Appellant’s drug test and instructed

them to disregard any testimony provided by federal agents that

made    reference       to    and   suggested          Appellant      had      Vicodin    or

hydrocodone in his system when he was arrested.                                Even if an

inadvertent Brady violation had occurred, the district court’s

curative    instruction        properly        cured    any   potential        prejudicial

effect.     There is, therefore, no reasonable probability that a

different verdict would have been resulted.

                                              III.

            Appellant additionally maintains that his convictions

rest on insufficient evidence.                      “We review the sufficiency of

the    evidence    de    novo.        A       defendant    bringing      a     sufficiency

challenge      must     overcome      a       heavy    burden,     and      reversal     for

insufficiency must be confined to cases where the prosecution’s

failure is clear.”           United States v. McLean, 715 F.3d 129, 137

(4th    Cir.     2013)       (internal         quotation      marks      and     citations

omitted).        We   “affirm       the       jury    verdict    when,       ‘viewing    the

evidence in the light most favorable to the prosecution, [it] is

supported by ‘substantial evidence,’” United States v. Hager,

721 F.3d 167, 179 (4th Cir. 2013) (quoting United States v.

King, 628 F.3d 693, 700 (4th Cir. 2011)).                       “Substantial evidence

consists    of    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.”                      King, 628 F.3d at

                                               22
700 (internal quotation marks omitted).                             “As both the Supreme

Court    and    this       Court     have    recognized,           appellate     reversal     on

grounds of insufficient evidence will be confined to cases where

the prosecution’s failure is clear.’”                          Hager, 721 F.3d at 179

(internal quotation marks and alterations omitted).

                                               A.

                         Controlled Substances Convictions

               Appellant       argues       there     was    insufficient         evidence    to

support     his       conviction       for     conspiracy          because      the     evidence

failed    to    demonstrate          any     agreement        to    illegally         distribute

controlled          substances       between    him     and        any   other    individual.

Appellant       contends       that     although        the       conspiracy      allegations

centered on Masooda Azad and Karen Derder, there was never any

agreement between the alleged members of the conspiracy.                                 To the

contrary, the Government argues the evidence was sufficient to

convict Appellant of conspiracy because both Ms. Azad and Ms.

Derder     testified         they     agreed     to    pick        up    prescriptions       for

Appellant.

               To    prove    a     conspiracy,       the     Government         must    present

evidence       of     an    agreement        between        two     or   more     persons     to

illegally distribute controlled substances.                              See United States

v. Burgos, 94 F.3d 849, 860 (4th Cir. 1996) (en banc).                                      “The

presence       of    a     knowing    and    voluntary        agreement         distinguishes

conspiracy          from    the      completed      crime         and    is    therefore      an

                                               23
essential element of the crime of conspiracy.”                         United States v.

Hackley, 662 F.3d 671, 679 (4th Cir. 2011).

               Here, viewing the evidence in the light most favorable

to    the   prosecution,        Appellant’s         conviction    for    conspiracy     is

supported      by     substantial    evidence.             Testimony    from   both    Ms.

Derder and Ms. Azad established that Appellant entered into an

agreement with each of them to pick up prescriptions in their

own    names    and    deliver    them    to    Appellant,        either   for   him    to

illicitly      deliver     to    others,       or    for    his   own    personal     use.

Although Appellant’s testimony contradicted the testimony of Ms.

Derder and Ms. Azad, the jury elected to credit their testimony

over Appellant’s.         We find no reason to overturn this reasonable

determination by the finder of fact.

               Appellant also claims there was insufficient evidence

to support his distribution offenses.                      However, after a careful

review of the record, we conclude substantial evidence clearly

supports that Appellant distributed and dispensed a variety of

controlled substances for recreational purposes and not for a

legitimate medical and dental purpose.                       Therefore, Appellant’s

argument is without merit.

                                           B.

                         Health Care Fraud Conviction

               As   previously      explained,        Appellant     performed    dental

work    for     his     parents     and    submitted         insurance     claims      for

                                           24
reimbursement to their medical insurance plan from World Bank,

which was administered by AETNA, but he submitted the claims in

the name of Dr. Kassem rather than in his own name.                                       According

to the Government, Appellant submitted claims in Dr. Kassem’s

name because he believed, based on his understanding of the plan

provisions,          that     AETNA     would     not         reimburse           him    unless      he

misrepresented          that    the     work     was        performed        by     a    non-family

member.        By doing so, Appellant received reimbursement checks to

which     he     was     not    entitled.              This         formed    the        basis      for

Appellant’s conviction for health care fraud.

               Appellant challenges this conviction by first arguing

there was insufficient evidence because the Government failed to

prove     that       Appellant        was   a    party         to     the     AETNA       contract.

According       to     Appellant,       because        he     was     not     a    party       to   the

contract,        he     was    not      bound        by       its    terms        that     excluded

reimbursement for work performed on family members.                                            Without

this    foundation,           Appellant         argues         the     evidence          could      not

establish that he formed the specific intent to defraud AETNA.

We are not persuaded by this line of argument.

               The     health     care      fraud         statute       pursuant          to     which

Appellant       was    convicted       makes      it      a    crime     to       “knowingly        and

willfully       execute[],       or     attempt[]             to    execute,        a    scheme      or

artifice . . . to defraud a health care benefit program.”                                            18

U.S.C. § 1347(a)(1); see also McLean, 715 F.3d at 136.                                              “The

                                                25
specific intent to defraud may be inferred from the totality of

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

McLean, 715 F.3d at 140.

               After careful review of the record, we conclude there

was substantial evidence to support Appellant’s conviction for

health care fraud.           As an initial matter, whether Appellant was

a party to the insurance contract or not is not relevant to

whether he       formed     the    specific         intent      to    commit    health      care

fraud.        Indeed, the fraud occurred when Appellant submitted a

claim    for    reimbursement           in    the    name    of      Dr.   Kassem     when   in

reality Appellant himself performed the dental work.                                 Based on

the    plan    itself      and    the    testimony         of   Kathy      Richer,     it    was

evident       that   the     AETNA/World            Bank    plan      excluded       “services

furnished by persons who are related to insured person in any

way by blood or marriage.”                   J.A. 1266.           The testimony of both

Karen Derder and Janet Williams established that Appellant was

aware of this provision, and to circumvent it, he deliberately

submitted claim forms for his parents to appear as though the

work     he     performed         had        been     performed        by      Dr.    Kassem.

Additionally, both Ms. Derder and Ms. Williams testified that

Appellant received checks made out to Dr. Kassem and signed them

over to himself.           The evidence was more than sufficient to show

that Appellant made the false representations to AETNA knowingly



                                               26
and   willfully,          in   order     to     receive       money    to    which     he    was

otherwise not entitled.

              Appellant          further       argues       the    evidence         failed    to

demonstrate that AETNA was a health care benefit program.                                     We

disagree.

              A    “health       care    benefit       program”       is    defined    by    the

statute as “any public or private plan or contract, affecting

commerce, under which any medical benefit, item, or service is

provided to any individual.”                  18 U.S.C. § 24(b).             After a review

of the record, we conclude, there was substantial evidence to

establish         AETNA    was    a     health       care    benefit       plan     under    the

statute.      The evidence showed AETNA was the agent of World Bank

for purposes of administering its health care plan, which was a

public or private plan or contract, affecting commerce, under

which   any       medical      benefit,       item,    or    service       was    provided    to

individuals.              Substantial         evidence        demonstrated          that     the

AETNA/World Bank plan provided health insurance coverage to the

plan participants, that AETNA administered that plan, acting as

World   Bank’s       agent,       and    that    AETNA        received      the     fraudulent

insurance claims submitted by Appellant.                          Therefore, we conclude

that, viewing the evidence in the light most favorable to the

prosecution,        Appellant’s         conviction          for   health     care    fraud    is

supported by substantial evidence.



                                                27
                                          C.

           After    careful    review          of   the     record,         we   further

conclude   Appellant’s     claim     of    cumulative       error      based      on   the

district court’s admission of a semi-explicit photograph and on

the   district   court’s    limitation         on   the    amount      of    cumulative

patient witnesses Appellant could call is without merit.

                                      IV.

           For     the   foregoing        reasons,        the    judgment        of    the

district   court    is   affirmed.        We    dispense        with   oral      argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                                                 AFFIRMED




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