               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0226n.06

                                        Case No. 18-1101

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                Apr 29, 2019
UNITED STATES OF AMERICA,                           )                      DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff – Appellee,                        )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE EASTERN DISTRICT OF
GERALD DANESHVAR,                                   )       MICHIGAN
                                                    )
       Defendant – Appellant.                       )
                                                    )

       BEFORE: SILER, COOK, and BUSH, Circuit Judges.

       JOHN K. BUSH, Circuit Judge. In the old days, every doctor made house calls to treat

patients. In more recent days, Dr. Gerald Daneshvar made house calls as part of a conspiracy to

commit Medicare fraud.

       Daneshvar’s conspiracy lasted from 2012 to approximately 2013, during his time at a

company called Mobile Doctors.       Ultimately, Daneshvar was charged with one count of a

conspiracy to commit healthcare fraud and two counts of healthcare fraud. A jury convicted

Daneshvar on the conspiracy count but found him not guilty of the other two counts. Daneshvar

was sentenced to 24 months in prison. This appeal followed.

       The record demonstrates that Daneshvar’s trial was fair and that none of the district court’s

rulings during that proceeding should be reversed. Furthermore, we find no reversible error with

his sentencing. We therefore AFFIRM.
Case No. 18-1101, United States v. Daneshvar


                                        I.      BACKGROUND

        A. Medicare

        Medicare is a taxpayer-funded healthcare benefit program for persons who are 65 and older

and for those under 65 with disabilities. Typically, a Medicare beneficiary visits a doctor’s office

and Medicare reimburses the doctor for the provided service. Medicare also pays for doctors’

home visits in certain circumstances; however, house calls cost Medicare more money than

treatment in a doctor’s office. Thus, to qualify for a home visit, a patient must be homebound,

which occurs if the patient has a condition because of an illness or injury that restricts the patient’s

ability to leave his or her place of residence without the aid of a supportive device (e.g., cane,

wheelchair, etc.). Also, the homebound patient actually must need the physician’s services.

        Given the voluminous number of beneficiaries and doctors, Medicare does not review each

home healthcare claim. Instead, Medicare relies upon doctors to accurately and honestly bill the

services they provide.

        B. Mobile Doctors

        In 2003, Dike Ajiri, a non-medical professional, opened Mobile Doctors, headquartered in

Chicago. It eventually expanded into seven states, including Michigan, and offered physician

services to homebound Medicare beneficiaries. It hired doctors who agreed to assign their

Medicare billing rights to the company. After a home visit, each doctor would fill out a routing

slip describing the patient’s diagnoses using Medicare codes and certifying that a qualified home

visit had occurred. The original of the routing slip stayed with the patient file, while the carbon

copy went to Mobile Doctors, which sought payment from Medicare. Upon receipt of payment,

Mobile Doctors would then pay the physician-employee a percentage of what the company

received from billing Medicare.




                                                   2
Case No. 18-1101, United States v. Daneshvar


        The problem with this business model was that a large portion of Mobile Doctors’s patients,

in fact, did not qualify as being homebound.           For instance, one doctor saw a supposedly

homebound patient return home carrying groceries. Another patient rescheduled her appointment

because she was bowling.         Nevertheless, Mobile Doctors’s physicians were undeterred in

characterizing such patients as homebound. In some instances, the doctors went even further: they

signed certifications for additional unneeded treatment from companies that provided at-home

nursing or physical therapy services—companies that had referred the patients to Mobile Doctors.

        For many patients, whether legitimately homebound or not, Mobile Doctors exaggerated

the services they needed. For example, Mobile Doctors scheduled each patient for a home visit

every 30 days, regardless of whether it was necessary. At most, only half of these patients needed

the prescribed medical care.

        Mobile Doctors also engaged in upcoding, a fraudulent practice in which a healthcare

provider submits a Medicare code for a more serious and more expensive diagnosis or procedure

than the provider actually diagnosed or performed. Typically, at each home visit, a doctor met

with a patient for 15 minutes at a minimum. Then, the doctor filled out the routing slip and,

regardless of how healthy the patient was, the doctor usually selected only the two most expensive

Medicare reimbursement codes for home healthcare. These top two codes are supposed to be rare

because Medicare limits them to complex visits lasting around an hour and requiring extensive

examination and treatment. But, Mobile Doctors utilized these codes for almost every doctor’s

visit, even visits as short as 10 minutes, which involved no tests or other assessments.

        In order to justify the higher-reimbursement codes, Mobile Doctors instructed their

physicians to list at least three diagnoses in the patient file; if the doctors did not list enough, then

a staff member added more to meet the three-diagnoses minimum. Typical diagnoses used to pad




                                                   3
Case No. 18-1101, United States v. Daneshvar


the claims were conditions that are common to persons over 50 years old: degenerative joint

disease, degenerative disk disease, high blood pressure, chronic pain, arthritis, and vitamin D

deficiency.

          Mobile Doctors only paid their physicians if they checked at least one of the top two billing

codes on their routing slips. If the doctor billed for the higher of the top two codes, the doctor was

paid more. And each doctor knew which codes paid the most. Every two weeks, physicians

received a pay chart detailing the pay for all doctors at the company. The pay chart detailed the

number of patients the physician visited per code, and how much Mobile Doctors paid for that

particular code.

          Mobile Doctors also encouraged their physicians to order diagnostic tests at specific

intervals and required baseline laboratory tests either once or twice per year, whether the patients

needed the tests or not. This testing was authorized by a “standing order” that Mobile Doctors

required its physicians to sign even though Medicare prohibits testing ordered pursuant to standing

orders. But Mobile Doctors thought otherwise: A doctor received bonuses from Mobile Doctors

based, in part, on how many tests were authorized under that doctor’s name pursuant to the

standing order.

          C. Daneshvar’s Involvement with Mobile Doctors

          In September 2012, Dr. Gerald Daneshvar1 joined Mobile Doctors as a physician in its

Michigan office. He enrolled with Medicare, signed over his Medicare billing privileges to Mobile

Doctors, and certified that he would abide by the rules set forth by Medicare and would not submit

false claims.




1
    Daneshvar is referred to as “Dr. Gerry” in some of the trial exhibits and testimony.


                                                       4
Case No. 18-1101, United States v. Daneshvar


       Daneshvar then began conducting home visits. In return, for submitting his routing slips,

he received payment from Mobile Doctors along with a pay chart detailing the pay for each

physician per patient visit and Medicare code. But, Daneshvar later confessed that approximately

30 percent of his patients that he certified as homebound were, in fact, not so. And, according to

one medical assistant, Robin Johnson, the fraud was even worse: Johnson testified that as many as

half of Daneshvar’s patients were not homebound.

       In fact, every time medical assistant Danielle Mangan went with Daneshvar for home visits,

there would be at least one patient who was not even at home when they arrived for the visit.

Medical assistant Shannon Guyton had similar experiences with Daneshvar. She testified that

many of the patients could drive or leave their homes without assistance. One of Daneshvar’s

patients also testified that she would regularly leave her house for daily activities such as going to

the store. Another patient cancelled her appointment because “[s]he was getting ready to leave,”

and yet another was not home because he was “out with his friend.” (Trial Tr. Vol. 3, R. 110, Page

ID # 951, 988–89.) Once, when medical assistant India Brimberry was conducting home visits

with Daneshvar, she saw a patient pull up in his car with bags, returning from a store. Another

patient, Kevin Barrett, biked regularly and played in his church band. Barrett was honest: he told

Daneshvar that he was not homebound. But such honesty did not carry over to Daneshvar’s

Medicare certifications.

       In the patient charts, Daneshvar would pre-sign forms documenting the face-to-face

encounter, because Medicare rules state that a physician needs to make an in-person visit. Then,

the clinical coordinator would fill out the diagnoses based on the routing slip or the exam notes

within the chart. The forms stated, “I certify that based on my findings the following services are

medically necessary home health services. Check all that apply.” (Trial Tr. Vol. 2, R. 109, Page




                                                  5
Case No. 18-1101, United States v. Daneshvar


ID # 798.) The form continued, “Further, I certify that my clinical findings support that the patient

is homebound (i.e., absences from home require considerable and taxing effort and are for medical

reasons or religion services or infrequently or of short duration . . . for other reasons . . .).” (Id. at

Page ID # 799.)

        Daneshvar not only fraudulently presented patients’ homebound status, but he also referred

his patients to home healthcare agencies for other unneeded services. Daneshvar once admitted to

medical assistant Guyton that one of his patients “didn’t need the [medical] service, they weren’t

homebound.” (Trial Tr. Vol. 2, R. 109, Page ID # 930.) But, that isolated instance of candor was

not indicative of Daneshvar’s practice generally.

        As it turned out, Daneshvar would conduct the most home visits of any doctor employed

by Mobile Doctors. During his employment, he saw almost 4,000 patients, which worked out to

be around 20 patients per day. In order to handle such a large volume, according to several medical

assistants, Daneshvar evaluated the patient in approximately 10 to 15 minutes, shorter in duration

than evaluations by other physicians employed by Mobile Doctors. And Daneshvar scheduled

every patient for his speedy visit every 30 days, regardless of whether the patient needed the house

call. At each visit, Daneshvar would typically write three to four diagnoses for the patient on a

routing slip; sometimes the clinical coordinator added diagnoses based on the patient chart.

Daneshvar even acted as seemingly clairvoyant: he sometimes filled out the diagnoses before he

even met with the patient.

        After completion of Daneshvar’s home visits, the routing slip was transmitted to the

Chicago office, where the Mobile Doctors staff engaged in upcoding. (See Trial Tr. Vol. 3, R.

109, Page ID # 804 (“Upcode per Dr. Gerry.”).) Daneshvar admitted that “most of his patients

were billed at a 4 or 5 level even though they qualified for 3 or lower.” (Trial Tr. Vol. 5, R. 112,




                                                    6
Case No. 18-1101, United States v. Daneshvar


Page ID # 1363.) Sometimes, Daneshvar himself checked a box with the appropriate Medicare

code on the routing slip. Other times, a medical assistant checked the box on Daneshvar’s behalf

and placed a copy of the routing slip in the patient file. Daneshvar never disapproved of the codes

on routing slips, and his signature appeared on all of the routing slips for his home visits. Mobile

Doctors would pay Daneshvar whenever he billed at least one of the top two codes. Mobile

Doctors also billed Medicare for two or three times the number of hours Daneshvar actually spent

with the patient, based upon the routing slip.

       At one point, Daneshvar asked Dr. Stephen Mason, another Mobile Doctors employee,

how he could make more money. Dr. Mason told him that “[w]e can’t bill any higher than we are

already billing. We are billing too high already.” (Trial Tr. Vol. 4, R. 111, Page ID # 1147.) But

there was another way to boost the bottom line—giving injections of medications into the patients’

musculoskeletal systems. Dr. Mason was getting paid extra for every injection. His experience

led Daneshvar to do the same.

       Along with injections, early-and-often testing was a money-maker. Daneshvar signed the

Mobile Doctors standing order for testing, which stated:

       Mobile Doctors Physician Standing Orders Preventative Care. Mobile Doctors
       actively promotes preventative care and early intervention. A thorough history and
       physical examination should be obtained on all of our patients along with
       preventative care. Based on the billable diagnosis for (enter state) Medicare, I give
       my clinical coordinator permission to order testing on my behalf when warranted.

(Trial Tr. Vol. 1, R. 108, Page ID # 712–13; Trial Exs., R. 135, Page ID # 1970.) Pursuant to the

standing order, Mobile Doctors’s staff would sign Daneshvar’s name on testing order forms. The

test results would come back, they would go to Daneshvar, and he would initial the results.

Daneshvar never objected when Mobile Doctors’s staff ordered tests on his behalf pursuant to his

standing order.




                                                 7
Case No. 18-1101, United States v. Daneshvar


       Ultimately, Daneshvar billed Medicare for almost $1.5 million in claims, was paid a salary

of almost $250,000 from Mobile Doctors, and received the highest bonuses of all the doctors

employed by the company. Mobile Doctors rewarded Daneshvar handsomely because he “does

literally anything we ask,” and so “we need to keep him happy.” (Trial Tr. Vol. 4, R. 111, Page

ID # 1225; Trial Tr. Vol. 5, R. 112, Page ID # 1372–76; Trial Exs., R. 135, Page ID # 1976–79.)

In June of 2013, Mobile Doctors re-signed Daneshvar’s contract, agreeing to reward him with a

$15,000 bonus. Mobile Doctors also agreed to pay Daneshvar an additional $4 per patient, but

only when he billed the two highest codes, which were “the actual levels that affect[ed his] pay.”

(Trial Exs., R. 135, Page ID # 1972.)

       D. Medicare Fraud Investigation

       Eventually, federal agents caught up with Mobile Doctors. In August 2013, agents

executed search warrants at all three Mobile Doctors offices, including the Michigan office where

Daneshvar worked. The same day, two agents interviewed Daneshvar at a coffee shop. Daneshvar

admitted that: (1) even though he certified his patients as homebound, approximately 30 percent

of them were not; (2) he referred patients to home healthcare agencies, including those patients

who were not homebound; (3) most of his patient visits lasted 15 to 20 minutes, allowing him to

see 20 patients per day; (4) most patients were billed at “4” and “5,” the two highest Medicare

codes, and thus, most of his patients were misbilled because they should have been billed at a “3”

or lower; and (5) his salary from Mobile Doctors was tied to billing codes “4” and “5.”

       E. The Trial

       A federal grand jury indicted Daneshvar on one count of conspiracy to commit healthcare

fraud, under 18 U.S.C. § 1349, and two counts of healthcare fraud, under 18 U.S.C. § 1347. The

case proceeded to a jury trial. On May 8, 2017, the jury convicted Daneshvar of Count 1, but




                                                8
Case No. 18-1101, United States v. Daneshvar


found him not guilty of Counts 2 and 3. Daneshvar filed a motion for a new trial, and the district

court denied the motion. On January 18, 2018, the court sentenced Daneshvar to 24 months of

imprisonment followed by three years of supervised release and a restitution amount of $900,000.

Daneshvar timely appealed.

                                           II.      DISCUSSION

        Daneshvar raises ten grounds for reversal premised on the following four areas of alleged

error: (1) the district court abused its discretion in excluding certain evidence; (2) the judge

improperly gave two Sixth Circuit criminal pattern jury instructions and one preliminary jury

instruction; (3) the judge should have provided a supplemental instruction to the jury after the jury,

during its deliberations, posed a question to the court; and (4) the district court abused its discretion

when sentencing Daneshvar. We address each category in turn.

        A. Evidentiary Issues

        We review the district court’s evidentiary rulings for abuse of discretion, which occurred

if it made “errors of law or clear errors of factual determination.” United States v. Baker, 458 F.3d

513, 517 n.6 (6th Cir. 2006) (internal quotation marks and citation omitted). However, “[w]hen a

party fails to object to evidence at the trial court, his contention on appeal will prevail only if the

trial court's evidentiary decision was plainly erroneous, thus affecting his substantial rights and

resulting in a miscarriage of justice.” Id. at 517. Here, as in Baker and Peak v. Kubota Tractor

Corp., 559 F. App’x 517, 521 (6th Cir. 2014), “[t]he decision as to the correct standard of review

will not affect the outcome of this appeal.” Baker, 458 F.3d at 517.2

        Moreover, even if we were to find that the court incorrectly excluded the evidence, “this

does not automatically result in a new trial.” United States v. Kilpatrick, 798 F.3d 365, 378 (6th


2
 Daneshvar argues that the abuse-of-discretion standard does not extend to the exclusion of crucial, relevant
evidence establishing a valid defense. In support, Daneshvar cites to United States v. Riley, 550 F.2d 233,


                                                     9
Case No. 18-1101, United States v. Daneshvar


Cir. 2015). Exclusion of the evidence must have “materially affect[ed] the verdict.” United States

v. English, 785 F.3d 1052, 1056 (6th Cir. 2015); Kilpatrick, 798 F.3d at 378 (“Non-constitutional

errors are subject to Rule 52(a) harmless error analysis: the government must show by a

preponderance of the evidence that the error did not materially affect the verdict.” (emphasis in

original)).

       i.     Admission of the December 27, 2012, Email

         Daneshvar’s defense was that he was ignorant of the fraud at Mobile Doctors. In support,

defense counsel moved to admit an email chain through Daneshvar’s testimony. The email, dated

December 27, 2012, was sent from Melissa Meredith (the branch manager for Mobile Doctors at

the Southfield, Michigan office) to Dike Ajiri (Mobile Doctors’s president) stating, in part:

         [W]e don’t want [the doctors] asking too many questions about billing etc. [L]et[’s]
         just keep them in the dark, we cover their liability, let us cover ourselves and that’s
         the end of it! We do not brow beat them with mundane details and we give creative
         control for the treatment of [patients] unless, it[‘s] something that will harm the
         [patient] or us. I think we should operate with [standing orders for tests] the same
         way. They are not stupid, they know we make money off of tests[,] but they also
         know that it is helping the [patient], that’s why they agree to it.

                 Sometimes too much can be harmful. Where did I hear that before? Oh
         yeah, it was you!

(Trial Exs., R. 118, Page ID # 1700.)

         On appeal, Daneshvar argues that the district court erred in excluding the email on

relevance and hearsay grounds. We agree with Daneshvar that the email was relevant, see Fed. R.

Evid. 401, but we disagree that it was admissible as Daneshvar argues under the business record




236 (5th Cir. 1977). Daneshvar misunderstands the holding in Riley. The Fifth Circuit held that,
“[a]lthough the trial judge is traditionally accorded a wide range of discretion in the admission of evidence,
it is axiomatic that such discretion does not extend to the exclusion of crucial relevant evidence establishing
a valid defense. Id. at 236 (citation omitted). In other words, the Fifth Circuit held that a district court
abuses its discretion if it excludes crucial relevant evidence establishing a valid defense—not that the abuse-
of-discretion standard does not apply.


                                                      10
Case No. 18-1101, United States v. Daneshvar


and residual hearsay exceptions, see Fed. R. Evid. 803(6), 807, and the opposing party statement

hearsay exclusion, see Fed. R. Evid. 801(d)(2)(E).

               a. Relevance

       First, as to relevance, the district court appeared to indicate that because the government

had already presented evidence demonstrating that Daneshvar knew of the fraudulent billing, the

email exchange discussing keeping doctors in the dark about billing was irrelevant. In other words,

the district judge treated the government’s evidence as conclusively establishing a fact,

notwithstanding any contrary evidence. This ruling was in error. Daneshvar’s counsel sought to

introduce the email to rebut the government’s evidence of the knowledge that the doctors,

including Daneshvar, had of Mobile Doctors’s billing practices. Therefore, the email had a

tendency to make a fact—the doctors’ apparent knowledge of Mobile Doctors’s billing practices—

“more or less probable.” Fed. R. Evid. 401. The jury should have been allowed to consider the

email in light of the government’s proof, and then determine what weight to assign to each piece

of evidence.

       We need not resolve, however, whether the district court’s erroneous finding that the email

was irrelevant materially affected the verdict because the district court properly excluded the email

on another ground: hearsay. As explained below, none of the hearsay exceptions or exclusion

cited by Daneshvar apply.

               b. Records of a Regularly Conducted Business Activity

       Both before the district court and upon appeal, Daneshvar argued that the email is

admissible as a business record. Pursuant to Federal Rule of Evidence 803(6), a business record

must have been: (a) made at or near the time by, or from information transmitted by, a person with

knowledge; (b) kept in the course of a regularly conducted business activity; and (c) made as part




                                                 11
Case No. 18-1101, United States v. Daneshvar


of a regular practice of the business. See Fed. R. Evid. 803(6). Moreover, all of these conditions

must be shown by the testimony of a qualified witness. Id.

       An email is not a business record for purposes of the relevant hearsay exception simply

because it was sent between two employees in a company or because employees regularly conduct

business through emails; such evidence alone is insufficient to show that the email is a record,

made as “a regular practice” of the company, Fed. R. Evid. 803(6)(C), and that “the record was

kept in the course of a regularly conducted activity of a business,” id. at 803(6)(B). “[I]t would be

insufficient to survive a hearsay challenge simply to say that since a business keeps and receives

e-mails, then ergo all those e-mails are business records falling with the ambit of Rule 803(6)(B).”

United States v. Cone, 714 F.3d 197, 220 (4th Cir. 2013). If that were the case, then every single

email sent within any company would fall within the exception. This result would obviate the

entire purpose of the business records exception, which is designed for a limited category of

records—namely those that are regularly produced as a part of a company’s business activities.

       Of course, an email can qualify as an admissible record of a regularly conducted business

activity as long as the proponent satisfies the requirements of Rule 803(6). But, it was no abuse

of discretion for the district court to find that those requirements were not met here. We affirm

the district court’s holding that the email “was not a business record [admissible under Rule

803(6)], but rather a form of conversation”—that is, a one-time discussion regarding what to tell

doctors—as this holding was based on no clearly erroneous factual finding or erroneous

interpretation of law. (Op. Denying Mot. for New Trial, R. 86, Page ID # 435.).3




3
 Moreover, Daneshvar did not offer a qualified witness to testify concerning the requirements of the
business record exception. See Fed. R. Evid. 803(6)(D).


                                                 12
Case No. 18-1101, United States v. Daneshvar


               c. Residual Hearsay Exception

       We also find that the district court did not err when declining to admit the email pursuant

to the residual clause of the hearsay rule, Federal Rule of Evidence 807. One of the requirements

of Rule 807 is that the evidence being offered “is more probative on the point for which it is offered

than any other evidence that the proponent can obtain through reasonable efforts.” Fed. R. Evid.

807(a)(3). At trial, Daneshvar repeatedly put forth evidence that the company’s doctors were not

made aware of Mobile Doctors’s final billing processes. For instance, Dr. Mason testified that he

was “in the dark” about Mobile Doctors’s billing. (Trial Tr. Vol. 4, R. 111, Page ID # 1197.)

Physician-employee Dr. Leonard VanGelder likewise testified that he did not have anything to do

with actual billing, which was handled by the Chicago office. Daneshvar similarly testified in his

own defense.

       The testimony of these witnesses precludes reliance on the residual exception. That is,

Daneshvar has not demonstrated that the email is more probative than is the testimony for the fact

that the doctors did not know about Mobile Doctors’s billing practices. Daneshvar argues on

appeal that the email has more probative value because it was sent by a “neutral” source, rather

than the physicians themselves. However, the jury learned of the actual email, as well as its

contents, during the questioning of Dr. Mason when he was asked, “[W]ere you shown an email

from Melissa Meredith to Dike Ajiri saying precisely that, I’m not reading it verbatim, but we’re

doing the best we can to keep the doctors in the dark about billing?” (Trial Tr. Vol. 4, R. 111,

Page ID # 1196–97.) Thus, Daneshvar’s point—that the company’s management was hiding its

billing practices from the doctors—could have been, and in fact was, made through the witnesses




                                                 13
Case No. 18-1101, United States v. Daneshvar


at trial. It was therefore no abuse of discretion for the district court to hold that the email was

inadmissible under Rule 807.4

                 d. Co-Conspirator Exclusion

        For the first time on appeal, Daneshvar also argues that the email is not hearsay because it

was a statement made by his co-conspirators, and therefore excluded from the hearsay definition,

pursuant to Federal Rule of Evidence 801(d)(2)(E). Daneshvar misapplies this Rule, which states

that “[t]he statement [must be] offered against an opposing party” and must have been “made by

the party’s coconspirator during and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2),

(d)(2)(E). Daneshvar incorrectly seeks to use his own co-conspirators’ statements on his behalf,

not against an opposing party. Moreover, even if Daneshvar were somehow using the statements

against the government, the statements were not made by “[that] party’s coconspirator”—that is,

the statements were not made by the government’s coconspirators. Fed. R. Evid. 801(d)(2)(E).

Thus, the email does not fall within Rule 801(d)(2)(E) and there was no abuse of discretion to

exclude it as hearsay by the district court.

      ii.   Admission of Joel Trombley’s and Daneshvar’s Testimony

        Defense counsel attempted to elicit testimony from both Daneshvar and Joel Trombley

regarding Daneshvar’s work at a later employer, the American Health Care Network (AHCN).

Trombley was employed as a medical assistant by Mobile Doctors and then worked with

Daneshvar at AHCN. Defense counsel attempted to establish that after Daneshvar left Mobile



4
  Even if the district court’s exclusion of the email had been in error, it would constitute harmless error. As
noted, the substance of the email was already admitted, through Dr. Mason’s testimony, at trial. See
generally United States v. Schaeffer, 626 F. App’x 604, 609 (6th Cir. 2015) (holding that “even assuming
that [a] letter was admissible as a statement against interest under Fed. R. Evid. 804(b)(3) or under
the residual hearsay exception, Fed. R. Evid. 807, the evidence against [the defendant] on the count to
which [the] letter related was overwhelming and the letter offered only weak support to [the defendant’s]
case”).


                                                      14
Case No. 18-1101, United States v. Daneshvar


Doctors for AHCN, he became more involved in the billing process, began to scrutinize bills to

make sure they were accurate, and “that once he learned, once he saw what happened he changed

his ways.” (Trial Tr. Vol. 6, R. 113, Page ID # 1437.) The government objected on the grounds

of relevance, and the court sustained the objection. The court determined that “how [Daneshvar]

conducted himself at a subsequent place of employment is not relevant to the issue in this case”

because this “case involves what happened with Mobile Doctors.” (Id.)

       On appeal, Daneshvar argues that he offered the AHCN evidence as “reverse Rule 404(b)

evidence.” Daneshvar points out that our circuit has recognized that reverse 404(b) evidence is

when “the evidence of a prior act by another is offered as exculpatory evidence by the defendant,

instead of being used by a prosecutor against a defendant.” United States v. Lucas, 357 F.3d 599,

605 (6th Cir. 2004). However, in Lucas, we held that “the Advisory Committee Notes following

Rule 401 explain that rules such as Rule 404 and those that follow it are meant to prohibit certain

types of evidence that are otherwise clearly ‘relevant evidence.’” Id. Thus, at the outset, we must

determine whether the evidence is relevant under Rule 401, and if so, whether it should nonetheless

be excluded as improper propensity evidence pursuant to Rule 404(b).

       We agree with the district court that evidence of Daneshvar’s conduct after he left Mobile

Doctors is not relevant, as the fraud and conspiracy at issue occurred only while Daneshvar was at

Mobile Doctors.     Daneshvar’s post-Mobile Doctors evidence is not that of his potentially

exculpatory actions undertaken prior or during the time of the fraud, but rather, pertain to activities

conducted after the fraud ended. Thus, even if Daneshvar employed legal billing practices after

his time at Mobile Doctors, that fact does not change or alter the evidence presented regarding his

actions while conspiring to commit fraud at Mobile Doctors.




                                                  15
Case No. 18-1101, United States v. Daneshvar


       Moreover, we have held that “[f]or the same reason that prior ‘bad acts’ may not be used

to show a predisposition to commit crimes, prior ‘good acts’ generally may not be used to show a

predisposition not to commit crimes.” United States v. Dimora, 750 F.3d 619, 630 (6th Cir. 2014).

Even considering the merits of Daneshvar’s argument that his post-Mobile Doctors conduct tended

to make his lack of intent more probable, which is an acceptable purpose for admission under Rule

404(b), the evidence of Daneshvar’s future billing practices does not qualify as “reverse 404(b).”

Daneshvar’s attention to billing after he left Mobile Doctors is not “evidence of a prior act by

another,” Lucas, 357 F.3d at 605 (emphasis added), but rather, is evidence of his own future acts.

See also United States v. Armstrong, 436 F. App’x 501, 503 (6th Cir. 2011) (“[E]vidence of a prior

act by another is offered as exculpatory evidence by the defendant, instead of being used by a

prosecutor against a defendant.” (emphasis added)) (citation omitted); United States v. Clark, 377

F. App’x 451, 458 (6th Cir. 2010) (same); United States v. Robinson, 272 F. App’x 421, 430 (6th

Cir. 2007) (analyzing reverse 404(b) as “evidence of prior acts of a third party offered by a

defendant” (emphasis added)).

       Accordingly, the district court did not abuse its discretion in excluding evidence of

Daneshvar’s billing conduct after he left Mobile Doctors.

    iii.    Admission of the Summary Charts

       Daneshvar also argues that the trial court committed reversible error when it excluded two

proposed summary exhibits that Daneshvar sought to admit through his own testimony. We

disagree.

       On cross-examination, defense counsel questioned the government case agent about two

exhibits admitted into evidence during the government’s case-in-chief. These exhibits compiled

the Medicare data for Mobile Doctors and displayed each doctor-employee’s total Medicare




                                               16
Case No. 18-1101, United States v. Daneshvar


billings and number of home visits. (Trial Exs., R. 135, Page ID # 1984–86, 1989–90.) The charts

showed that Daneshvar billed over $1.4 million to Medicare, more than any other physician

employed by Mobile Doctors, and that he visited the greatest number of patients, as compared to

the other doctors. Defense counsel asked the government case agent to use both of the exhibits to

calculate the average amount that Daneshvar had billed to Medicare per patient and then compare

it to the same calculation for the other physicians. This arithmetic yielded the average amount that

each physician billed to Medicare per patient. The agent agreed that “by looking at the charts,” he

“would say yes,” the average amount billed to Medicare per patient visit was higher for other

doctors than for Daneshvar. (Trial Tr. Vol. 5, R. 112, Page ID # 1393.)

        The next day, defense counsel sought to introduce into evidence two summary exhibits

listing the same calculation for each doctor and his or her average amount billed to Medicare per

patient. The government objected on relevance grounds, and defense counsel responded that in

light of government making “a big point about how [Daneshvar’s] amount of money” billed to

Medicare was at least $1.4 million, the proposed charts show that Dr. Guzman “had a lot higher

ratio of how much money was billed per patient visit than Dr. Daneshvar.” (Trial Tr. Vol. 6, R.

113, Page ID # 1480–81.) Thus, the charts “show[] that Dr. Daneshvar, while he had a very large

number of visits, the amount of money billed for his visits put him about fifth or sixth” as compared

to the other physician’s billings per patient visit. (Id.)

        The district judge remarked that Dr. Guzman was not on trial and held that “[t]he fact that

some other doctor billed even more per visit is irrelevant to what this doctor did.” (Id. at Page ID

# 1483.) After some back-and-forth, defense counsel again attempted to explain the relevance of

the summary exhibits, stating, “The government brings in summary exhibits and they argue from

them through their witness about what a big crook he is, and then I’m prohibited from showing




                                                   17
Case No. 18-1101, United States v. Daneshvar


that with the same numbers . . . Dr. Daneshvar is fifth of the group . . . .” (Id. at Page ID # 1484.)

The court responded that “according to your theory, if they are all crooks, he [Daneshvar] rated

number five as a crook. Somebody was more crooked than he was.” (Id.) Defense counsel

responded that this was not his theory and contended, “It’s just to contradict [the government’s]

chart. I mean why is their chart admissible to show he got all of this money, and I can’t explain

the difference . . . ?” (Id.) The court nonetheless denied Daneshvar’s request on relevance grounds

and prohibited defense counsel from asking any more questions about the calculation. (Id. at

1486.)

         On appeal, Daneshvar argues that the summary charts were relevant and admissible

pursuant to Federal Rule of Evidence 1006, which allows for the use of a summary, chart, or

calculation. Daneshvar cites to United States v. Bray, 139 F.3d 1104, 1109 (6th Cir. 1998) (internal

quotation marks and citations omitted) for the proposition that “the proponent of the summary

must also have made the documents available” to the other side so the opposing party can “attack

the authenticity or accuracy of a chart, summary, or calculation, with an opportunity to prepare for

cross-examination, or to offer exhibits of its own as rebuttal evidence, which would serve to

counteract the impression made on the jury by the proponent’s witness.” Finally, Daneshvar

argues that the court denied him his constitutional right to present evidence on his own behalf by

prohibiting him from asking questions about the arithmetic calculation.

         Even if we were to agree with Daneshvar that the summary charts and the corresponding

calculations were relevant and admissible, thus finding that the district court erred, such error was

harmless because Daneshvar elicited the same information for the jury’s benefit earlier in the trial.

As detailed earlier, Daneshvar elicited information concerning how much he billed to Medicare on

average per patient visit, as compared to the other physicians, during his counsel’s cross-




                                                 18
Case No. 18-1101, United States v. Daneshvar


examination of the government’s case agent. Also, at closing argument, Daneshvar’s counsel

argued that the government exhibits did not

       make an attempt to show how much money was billed by Mobile Doctors per
       patient visit. That’s what they didn’t do. So you—because I was able to do it with
       my Mumford High School arithmetic, you can do it yourself. You can take those
       numbers. You don’t need to make it exact, and you can divide how many visits
       into how much billing was generated.

(Trial Tr. Vol. 8, R. 121, Page ID # 1774.) Thus, the jury was presented with the very facts that

Daneshvar’s counsel wanted to convey with his proposed exhibits.

       Furthermore, “the evidence against [Daneshvar] on the count to which [the summary

charts] related was overwhelming and [the summary charts] offered only weak support to

[Daneshvar’s] case.” Schaeffer, 626 F. App’x at 609. Even if Daneshvar was not the top

fraudulent biller to Medicare per patient visit, the evidence demonstrates that he nevertheless billed

fraudulently to Medicare. That he billed less per patient than the other doctors is only “weak

support” for his argument. Id.

       Consequently, we find that any alleged error regarding the district court’s ruling on the

defense’s proposed summary charts constitutes harmless error.

       B. Jury Instructions

       For the first time on appeal, Daneshvar argues that it was error for the trial judge to give

certain jury instructions; in particular, he takes issue with three instructions. Because Daneshvar

“did not object to the district court’s jury instructions, we review for plain error.” United States v.

Carmago-Antonio, 541 F. App’x 678, 679 (6th Cir. 2013) (citing United States v.

Newsom, 452 F.3d 593, 605 (6th Cir. 2006)); Fed. R. Crim. P. 30(d). “In the context of challenges

to jury instructions, plain error requires a finding that, taken as a whole, the jury instructions were




                                                  19
Case No. 18-1101, United States v. Daneshvar


so clearly erroneous as to likely produce a grave miscarriage of justice.” United States v. Semrau,

693 F.3d 510, 528 (6th Cir. 2012) (internal quotation marks and citation omitted).

      i.    Deliberate-Ignorance Jury Instruction

        The district judge read the following instruction to the jury:

        Now I want to explain something about proving a defendant’s knowledge. No one
        can avoid responsibility for a crime by deliberately ignoring the obvious. If you
        are convinced that the defendant deliberately ignored a high probability that Mobile
        Doctors was engaged in a fraud, you may find that he knew that Mobile Doctors
        was engaged in a fraud.

        But to find this you must be convinced beyond a reasonable doubt that the
        defendant was aware of a high probability that Mobile Doctors was engaged in
        fraud and that defendant deliberately closed his eyes to what was obvious.
        Carelessness or negligence or foolishness on his part is not the same as knowledge
        and is not enough to convict. This, of course, is all for you to decide.

(Trial Tr. Vol. 8, R. 121, Page ID # 1815–16.)

        Daneshvar concedes that this instruction mirrors the Sixth Circuit Pattern Jury Instruction

2.09, with no modification, which is used to define the “knowledge” requirement for the charged

offenses.5 However, he argues that our circuit has held “that the decision to give this instruction

is to be approached with significant prudence and caution. More specifically, we have noted that

the instruction should not be given routinely because of the risk of a conviction based on mere

negligence, carelessness or ignorance.” United States v. Mitchell, 681 F.3d 867, 876 (6th Cir.

2012) (citing Mari, 47 F.3d at 785). We have said that the instruction should “be used sparingly.”

Geisen, 612 F.3d at 486. Daneshvar argues that this is an instance in which the instruction should

not have been given because the government did not provide evidence that he deliberately turned

a blind eye to Mobile Doctors’s activities.



5
  We have repeatedly held that this instruction is an accurate statement of the law. See, e.g., United States
v. Geisen, 612 F.3d 471, 486 (6th Cir. 2010); United States v. Beaty, 245 F.3d 617, 622 (6th Cir.
2001); United States v. Mari, 47 F.3d 782, 785 (6th Cir. 1995).


                                                     20
Case No. 18-1101, United States v. Daneshvar


       “This is not, of course, our first encounter with this instruction.” Mitchell, 681 F.3d at 876.

“What [Daneshvar] challenges . . . is the propriety, in light of the evidence presented at trial, of

giving the instruction at all. He contends that the jury could not have within reason found, based

on the evidence, that he was deliberately ignorant of the existence of the [Medicare fraud].” Mari,

47 F.3d at 785. We resolved the issue raised by Daneshvar in Mari, and we are bound by that

decision to hold that the district court did not commit plain error in giving the instruction. See id

at 785–86 (explaining rationale for the instruction and circumstances in which, even if the

instruction was given mistakenly, “giving the Sixth Circuit Pattern Jury Instruction on deliberate

ignorance was harmless as a matter of law”).

     ii.   Conspiracy Jury Instruction

       The district court also read the following jury instruction to the jury:

       If you are convinced there was a criminal agreement, then you must decide whether
       the government has proved that the defendant knowingly and voluntarily joined
       that agreement. To convict the defendant, the government must prove that he knew
       the conspiracy’s main purpose, that he voluntarily joined it intending to help or
       achieve its goals.

       This does not require proof that the defendant knew everything about the
       conspiracy or everyone else involved or that he was a member of it from the very
       beginning. Nor does it require proof that the defendant played a major role in the
       conspiracy or that his connection to it was substantial. A slight role or connection
       may be enough.

(Trial Tr. Vol. 8, R. 121, Page ID # 1817–18.)

       This instruction is identical to the Sixth Circuit Pattern Jury Instruction 3.03. Daneshvar

argues that we “should take this opportunity to disavow the jury instruction” (Appellant Br. at 40),

and in doing so, he makes the same argument as in United States v. Mahbub, 818 F.3d 213, 230

(6th Cir. 2016), where the defendant contended that the jury instruction lowers the burden of proof.

In Mahbub, we held:




                                                 21
Case No. 18-1101, United States v. Daneshvar


         [The defendant’s] contention lacks merit. The instruction states, and the district
         court read, “[a] slight role or connection may be enough” to link a defendant to a
         conspiracy, which is an accurate legal proposition. See United States v. Price, 258
         F.3d 539, 544 (6th Cir. 2001) (“The connection of the defendant to the conspiracy
         need only be slight, if there is sufficient evidence to establish that connection
         beyond a reasonable doubt.”); United States v. Betancourt, 838 F.2d 168, 174 (6th
         Cir. 1988) (“The existence of a connection to the conspiracy must be shown beyond
         a reasonable doubt, but the importance of the connection need not be great.”). To
         the extent that the disputed language lowers the burden of proof to support a
         conviction, we note that “no single provision of the jury instruction can be read in
         isolation;” instead, “the charge must be considered as a whole.” United States v.
         Horton, 847 F.2d 313, 322 (6th Cir. 1988).

Id. We determined that “the district court made it abundantly clear that the reasonable-doubt

standard applied in determining whether [the defendant] should be found guilty of criminal

conspiracy” by using the phrase “beyond a reasonable doubt” in the jury instructions. Id.

         Daneshvar argues that unlike in Mahbub, “the rest of the jury instructions in this case

combined to relieve the government of its high standard of proof and replace it with speculation

and probabilities.” (Appellant Br. at 39.) We do not find that Daneshvar’s argument has merit,

let alone establishes that the district court committed plain error. As in Mahbub, the district court

here repeatedly used the reasonable-doubt standard. Before beginning the conspiracy section, the

court stated: “A conspiracy is a kind of criminal partnership. For you to find the defendant guilty

of the conspiracy charge, the government must prove each and every one of the following elements

beyond a reasonable doubt . . . .” (Trial Tr. Vol. 8, R. 121, Page ID # 1816.) Again, the court

stated, “You must be convinced that the government has proved all of these elements beyond a

reasonable doubt in order to find the defendant guilty of the conspiracy charge.” (Id. at Page ID #

1817.)

         Although Daneshvar points out that other circuits do not use the phrase “slight evidence,”

our circuit continues to do so, so long as, considering the jury instructions as a whole, the

instructions do not lower the burden of proof. See Mahbub, 818 F.3d at 230; see also United States



                                                 22
Case No. 18-1101, United States v. Daneshvar


v. Price, 258 F.3d 539, 544 (6th Cir. 2001) (“The connection of the defendant to the conspiracy

need only be slight, if there is sufficient evidence to establish that connection beyond a reasonable

doubt.”). Upon reviewing the jury instructions as a whole, including the district court’s repeated

use of the reasonable-doubt standard, we find that the instructions did not lower the burden of

proof. 6 Thus, we find no error in the use of the conspiracy jury instruction.

     iii.   Presumption of Innocence Preliminary Jury Instruction

        At the start of the trial, the district court provided the parties with a set of preliminary jury

instructions the court intended to use, and neither side objected. One of these instructions read:

        Now, there are some basic rules about a criminal case you must keep in mind. First,
        the defendant is presumed innocent until proven guilty. The indictment against a
        defendant is only an accusation, nothing more. It’s not proof of guilt or anything
        else. The defendant, therefore, starts out the case with a clean slate.

(Trial Tr. Vol I, R. 108, Page ID # 612–13.)7

        Daneshvar argues that this instruction does not mirror that found in the Sixth Circuit Pattern

Criminal Jury Instruction 1.03, which states that the “presumption of innocence stays with [the

defendant] unless the government presents evidence here in court that overcomes the

presumption.” In particular, Daneshvar takes issue with the district court’s use of the word “until,”

in comparison to the pattern jury instruction’s use of the word “unless.”


6
  Daneshvar argues that the deliberate-indifference jury instruction, combined with the conspiracy jury
instruction that was given, lowers the burden of proof. But other than arguing, as we discussed above, that
the government failed to present evidence that he acted with deliberate indifference, Daneshvar presents no
other argument or evidence that the deliberate-indifference jury instruction can lower the burden of proof.
We find that this sort of conclusory statement is, “bereft of factual and legal support, [thus, Daneshvar] has
not properly developed this argument.” Gafurova v. Whitaker, 911 F.3d 321, 328 (6th Cir. 2018).
Similarly, Daneshvar, in one sentence of his brief, argues that the use of the words “natural and probable”
by the district court in the jury instructions resulted in lowering the burden of proof. Again, he presents no
other argument or authority for support. Thus, we hold that Daneshvar has forfeited these arguments.
7
 The instructions are copied from those in the model preliminary jury instructions for criminal trials
published in the Benchbook for federal district judges. See Federal Judicial Center, Benchbook for U.S.
District Court Judges § 2.07 (6th ed. 2013). We have recognized that judges should use this Benchbook.
See United States v. McDowell, 814 F.2d 245, 249–50 (6th Cir. 1987).


                                                     23
Case No. 18-1101, United States v. Daneshvar


        Daneshvar has not established plain error from the district court’s preliminary instructions.

The Supreme Court has stated that the use of the word “until” in the following instruction is “quite

correct”:

        The defendant is presumed to be innocent of all the charges against him until he is
        proven guilty by the evidence submitted to you. This presumption remains with
        the defendant until such time, in the progress of the case, that you are satisfied of
        the guilt beyond a reasonable doubt . . . . Every man is presumed to be innocent
        until he is proved guilty, and this legal presumption of innocence is to be regarded
        by the jury in this case as matter of evidence, to the benefit of which the party is
        entitled.

Agnew v. United States, 165 U.S. 36, 51 (1897) (emphasis added).

        As in Agnew, in which the jury instructions included phrases such as “guilt beyond a

reasonable doubt” and “presum[ption] of innocence,” the context of the instructions in the instant

case demonstrates that Daneshvar was presumed innocent as the trial began. The district court

stated that Daneshvar “starts out the case with a clean slate,” that he had “no burden to prove

innocence,” and that “the government must prove the defendant guilty beyond a reasonable doubt.”

(Trial Tr. Vol. 1, R. 108, Page ID # 613.) Thus, the instruction, “especially when considered in its

context,” was not improper. United States v. Hynes, 467 F.3d 951, 956–57 (6th Cir. 2006) (“But

even if the isolated statement could be interpreted as improper, the district court avoided any

prejudice to [the defendant] by twice instructing the jury on the presumption of innocence.”).

        We also note, as Daneshvar concedes, that the district court told the jury there would be

“further instructions” later, and he used the “unless” phrase at the end of the trial, when he

delivered jury instructions prior to the jury deliberation period. (See Trial Tr. Vol. 1, R. 108, Page

ID # 613; Trial Tr. Vol. 8, R. 121, Page ID # 1808.)

        In sum, we do not find that the jury instruction is clearly or obviously incorrect so as to

constitute plain error.




                                                 24
Case No. 18-1101, United States v. Daneshvar


        C. Response to Jurors’ Question

        Daneshvar also raises issue with the district court’s response to the jurors’ question, which

was posed to the court during the middle of jury deliberations. Daneshvar argues that, after the

foreperson asked this question, the court failed to clarify the issue concerning the legal definition

of conspiracy.

        We find no error in the district court’s response to the jury. To explain our reasoning, we

recount below the exchange between the district judge and the jury, and between the judge and

parties’ counsel, during jury deliberations.

        On the second day of deliberations, the jury requested readback of certain pieces of

testimony. Later in the day, the court received a note from the jury stating: “We have reached our

verdict on Counts 2 and 3 SOLID. We are at a hard hung jury on Count 1, no budging. Please

advise.” (Trial Tr. Vol. 9, R. 78, Page ID # 341.) At first, both defense counsel and the government

requested an Allen charge,8 but then, both parties agreed with the court’s suggestion to first speak

to the foreperson. The court told the foreperson that, “[i]n my experience, you haven’t deliberated

very long.” (Id. at Page ID # 342). The court then asked, “Is it your view that there’s a question

that could be answered possibly or a portion of a testimony that could be read possibly that might

I suppose I would say achieve movement?” (Id.)

        The foreperson responded that the jurors were “getting hung up a little bit on the

conspiracy.” (Id. at Page ID # 343.) The foreperson asked, “So is conspiracy—how do I describe

this—can it be Mobile Doctors, the company as a whole? Does that make sense?” (Id.) The court



8
  In Allen v. United States, 164 U.S. 492 (1896), the Supreme Court approved the use of a jury instruction
intended to prevent a hung jury by encouraging jurors to render a verdict. This instruction has now become
known as the Allen charge.


                                                   25
Case No. 18-1101, United States v. Daneshvar


responded, “Well, there’s an instruction on what constitutes conspiracy.” (Id.) The foreperson

then remarked that “[t]here’s a lot of variables to it that some rather than others are having more

difficulty with.” (Id.)

       The court next inquired as to whether “my rereading a portion of the instruction would be

helpful?” (Id.) The foreperson replied that “it might be,” and directed the court to a portion of the

jury instructions that was the issue. (Id. at Page ID # 343–44.) The foreperson stated that “some

of the jurors feel that . . . ,” but, before the foreperson or court could proceed further, the

government requested a sidebar. (Id. at Page ID # 344.) The court sent the foreperson back to the

jury room.

       The government attorney explained that she was afraid the foreperson would reveal what

the jurors had been deliberating. The judge responded that the foreperson was “telling me that

there’s a hang-up on what this means.” (Id. at 345.) The judge then said, “Let me suggest

something to you. [T]he note I just got does not come as a surprise to the Court. [I]f this is a hung

jury, the likelihood of you retrying this case is not very great.” (Id.) When the government

attorney protested to this characterization, the judge responded, “[w]ell, I’m telling you, you may

have some problems in that regard, I don’t know. But I think you ought to let her [the foreperson]

elaborate.” (Id.)

       The government attorney then expressed concern that when the foreperson started to use

the phrase “some of us,” the foreperson was about to reveal information about what the jurors had

been deliberating about. (Id. at 346.) The judge responded, “I don’t know what she’s going to

say. I’ve asked her if the Court can give her any assistance. And she can tell us, and I can say I

can’t respond to that. That’s not revealing what—she’s revealing what the hang up is and she’s

suggesting that the instructions are inadequate is what she’s saying.” (Id.)




                                                 26
Case No. 18-1101, United States v. Daneshvar


       Defense counsel remarked that it appeared the jury was having trouble understanding

whether Daneshvar “[c]an . . . be convicted of conspiring with the entity Mobile Doctors[.] [A]nd

the answer to that is no, you can’t conspire with an entity.” (Id.) The judge responded, “I don’t

know what she was saying then. We started over.” (Id.) Defense counsel again reiterated what

he believed to be the foreperson’s question and added that “if they’re having problems with the

instruction, . . . all the court can do is say, ‘you have the instructions.’” (Id. at Page ID # 346–47.)

The court responded, “I understand that I cannot comment. I can only listen to her and then see

what she has to say and then either say, ‘I—I appreciate what you’re saying,’” and then either

remind the jury to “take the instructions as a whole” and “can’t single out any one or more,” or

“hear out” the foreperson. (Id.) Defense counsel agreed and stated, “I’m good with that.” (Id. at

347, 348 (“That’s fine with me . . .”).)

       At this point, the court summoned the foreperson, and asked, “tell me now, what is it . . .

that concerns the panel?” (Id. at 348.) The foreperson responded, “So, before I do that, can I tell

you about the conversation we just had . . . ?” (Id.) The foreperson then explained that “[s]ome

people don’t think all the variables were made in Count 1 and they . . . [are] not going to come off

that opinion.” (Id.) The foreperson pointed out where in the jury instructions some jurors felt as

though “[n]ot all of those [elements] have been made in this juror’s eyes.” (Id. at Page ID # 348–

50.) The court reacted by sending the foreperson back into the jury deliberation room and again

conferring with the parties.

       During the sidebar, defense counsel “recommend[ed] that the Court take the verdict as to

Counts 2 and 3 and declare a hung jury as to Count 1.” (Id. at Page ID # 350.) The government

opposed this recommendation, requesting instead an Allen charge because the jury had “only been

deliberating for three hours yesterday and four or five hours today.” (Id.) After the court agreed




                                                  27
Case No. 18-1101, United States v. Daneshvar


to give the Allen charge, defense counsel responded, “I’m a little worried of a rushed verdict,

although it sure doesn’t sound like it will be one. But if we would give them the Allen charge, I’m

fine, and then let them go and come back Monday.” (Id. at Page ID # 350–51.) Though the court

at first resisted the defense’s adjournment request, ultimately the court agreed, previewed the Allen

charge for the parties, and asked if it was okay. Both counsel agreed it was acceptable.

       The court then read the jurors the Allen charge and sent them home for the weekend. The

following Monday, May 8, 2017, the jury returned their verdict.

       On appeal, Daneshvar argues that the verdict was improper because the district court

should have given a supplemental instruction defining conspiracy. The government responds that

Danehvar’s challenge to the district court’s response should begin and end with waiver because

defense counsel intentionally relinquished any objection to the court’s ultimate decision to read

the Allen charge and make no other supplemental instruction. We agree.

       In United States v. Budd, 496 F.3d 517, 529 (6th Cir. 2007), we held that even when counsel

had raised objections to the jury instructions, his subsequent statement that he was “comfortable”

with the instructions meant that he “cannot now complain about the court’s explanation of the

Fourteenth Amendment standard.” Here, not only did defense counsel state that he was “fine”

with the Allen charge, but also, after the foreperson asked whether “it” (presumably, the

conspiracy) could be “Mobile Doctors, the company as a whole,” Daneshvar’s counsel responded

with: “[A]ll the court can do is say, ‘you have the instructions.’” (Id. at Page ID # 346–47, 350–

51.) Thus, at no point did defense counsel ask for a supplemental jury instruction regarding

conspiracy and in fact, counsel asked the judge to reread the conspiracy jury instructions as the

court had initially delivered them.




                                                 28
Case No. 18-1101, United States v. Daneshvar


        True, in United States v. Nunez, 889 F.2d 1564, 1568 (6th Cir. 1989), we held that “[w]hen

a jury indicates confusion about an important legal issue, it is not sufficient for the court to rely on

more general statements in its prior charge.” However, we further stated that “[t]he government

is mistaken in stating that [the defendant] never raised the issue of whether an agreement only

between him and [the DEA agent] would be sufficient. [The defendant’s] attorney made this very

point in his closing argument. Furthermore, the jury raised the issue, and that imposed a duty upon

the trial judge to respond.” Id. at 1569.

        Unlike the defense attorney in Nunez, defense counsel here did not raise the particular issue

that he now claims confused the jury. Second, and more importantly, the foreperson in Nunez

clearly asked a question regarding the applicable law: “Can [the defendant] make an agreement

with [the DEA agent] to satisfy the agreement element in a conspiracy?” Id. at 1567. The Nunez

foreperson also asked, “Can [the DEA agent] be considered a co-conspirator?” Id. In the case at

hand, by contrast, the first time the foreperson appeared before the district court, she asked, “So is

conspiracy . . . can it be Mobile Doctors, the company as a whole?” (Trial Tr. Vol. 9, R. 78, Page

ID # 343.) The second time the foreperson appeared before the court, she did not ask a question.

She clarified that the hang-up was that “[s]ome people don’t think all of the variables were made

in Count 1 and they . . . [are] not going to come off that opinion.” (Id. at 348.)

        It is not clear to us that the jury asked a question in the instant case so as to be considered

the sort of definite inquiry giving rise to a supplemental instruction as was the case in Nunez. We

found in Nunez that “[t]he jury pointedly asked if [the DEA agent] could be a co-conspirator and

if an agreement between [the defendant] and [the DEA agent] would ‘satisfy the agreement

element in the conspiracy.’” 889 F.2d at 1569 (emphasis added). Here, the foreperson’s question

did not reference Daneshvar at all, let alone ask whether Daneshvar could conspire with Mobile




                                                  29
Case No. 18-1101, United States v. Daneshvar


Doctors under the applicable law regarding conspiracy. The trial judge also did not indicate that

he understood defense counsel’s interpretation of the juror question—that the jury wanted to know

if Daneshvar could conspire with Mobile Doctors—to be what the foreperson asked. (Trial Tr.

Vol. 9, R. 78, Page ID # 346 (“I don’t know what she was saying then.”).)

       In Nunez, we clarified that “the propriety of a supplemental instruction must be measured

‘by whether it fairly responds to the jury’s inquiry without creating . . . prejudice.’” Id. at 1568

(quoting United States v. Giacalone, 588 F.2d 1158, 1166 (6th Cir. 1978)). Here, the district judge

twice asked the foreperson to explain the question premised on the jury confusion, and thus, the

judge attempted to understand the question. In fact, the second time the foreperson was brought

out to the court, the foreperson explained what the issue was: some jurors believed the government

had not satisfied all of the elements required under Count 1. We cannot see how a supplemental

instruction regarding the legal definition of conspiracy would have aided the jury at this point, as

it appears that the issue presented to the court concerned what to do when jurors do not budge from

their differing opinions.

       Thus, the trial judge’s decision to read the Allen charge was more appropriately tailored to

the jury’s issue, because through the Allen charge, the judge urged the jury to reevaluate the

evidence presented for Count 1. The judge stated, “You have advised me that you believe you are

unable to reach a verdict and have asked what . . . can be done. This is an instruction . . . . [T]his

is how I’m going to answer your question.” (Trial Tr. Vol. 9, R. 78, Page ID # 353.) The judge

then proceeded to read the Allen charge.        In this way, the judge appropriately provided a

supplemental instruction “to clear up uncertainties which the jury brings to the court’s attention.”

Giacalone, 588 F.2d at 1166.




                                                 30
Case No. 18-1101, United States v. Daneshvar


       We therefore hold that Daneshvar waived any objection to the district court’s response to

the jury’s inquiry, but even if he had preserved the issue, the district court’s actions upon receiving

the jury question were not in error.

       D. Sentencing Issues

              i.   Acceptance of Guilt

       Daneshvar also argues that the district court considered an impermissible factor implicating

Daneshvar’s constitutional right when the court sentenced him. Specifically, Daneshvar argues

that he was punished for deciding to go to trial, in violation of his Sixth Amendment right to have

a jury trial. We disagree.

       It is true that at sentencing, the district judge stated that “[t]here was a trial,” and “[i]t

reduces rather significantly the lower level of the variance because by going to trial the Court is

satisfied that he does not acknowledge the fact that he was guilty, does not accept responsibility

for his wrongdoing.” (Sentencing Hr’g Tr., R. 107, Page ID # 583.) However, after there was

some discussion during which the judge confirmed that he had reviewed Daneshvar’s

supplemental sentencing memorandum, the judge explained:

       [N]owhere has there been an explanation for why the doctor went to trial. Nowhere
       has there been an explanation for why he put the government to the expense and
       difficulty of establishing his guilt by a jury. Now, that’s his constitutional right,
       and I’m not denigrating it, but I have not seen anything where the doctor—and it’s
       too late now—says I made a mistake, I was wrong, I should be punished. Nowhere
       have I seen that.

(Id. at Page ID # 588). Daneshvar’s counsel did not object to this statement by the court.

       The government argues that Daneshvar forfeited his sentencing objection because his

counsel did not raise it below. But, the failure of Daneshvar’s counsel to object in the district court

does not forfeit his right to appeal the issue: as the government concedes, the sentencing decision

is reviewable for plain error. See United States v. Cabrera, 811 F.3d 801, 808 (6th Cir. 2016);



                                                  31
Case No. 18-1101, United States v. Daneshvar


United States v. Davis, 751 F.3d 769, 773 (6th Cir. 2014); United States v. Vonner, 516 F.3d 382,

386 (6th Cir. 2008) (en banc). As we explain below, we find that the court did not plainly err when

considering Daneshvar’s lack of remorse and responsibility.

       Regardless of whether Daneshvar’s sentencing challenge “is categorized as being

procedural, substantive, or a combination of the two, it is clear that a sentence based on an improper

factor fails to achieve the purposes of § 3553(a) and may be unreasonable.” Cabrera, 811 F.3d at

809 (cleaned up). However, unlike the district court’s impermissible reliance upon the defendant’s

decision not to testify at trial in Cabrera, Daneshvar’s refusal to accept responsibility was a

permissible basis for the district court’s decision not to impose a lesser sentence. See In re Cook,

551 F.3d 542, 551 (6th Cir. 2009) (holding that it is “well established that a defendant’s remorse—

or lack thereof—is an appropriate consideration in meting out punishment.”). The transcript of

Daneshvar’s sentencing in this case is clear: while the district judge noted Daneshvar’s decision

to go trial, the judge also stated, “that’s [Daneshvar’s] constitutional right, and I’m not denigrating

it.” (Sentencing Hr’g Tr., R. 107, Page ID # 588.) The judge explained that the real issue was that

he “ha[d] not seen anything where the doctor . . . says I made a mistake, I was wrong, I should be

punished. Nowhere have I seen that.” (Id.)

       The district court’s statements here were markedly different than those in Cabrera, where

the sentencing judge recognized that “everybody has the constitutional right to go to trial,” but

also found that the defendant “never put [himself] on the record . . . at the trial.” 811 F.3d at 807.

The Cabrera sentencing judge further stated, “I have to tell you, from my standpoint . . . I view

that as an incredibly cynical attempt to game the whole system here[,]” and that the defendant

“conjured up” a “fantastical story,” “evinc[ing] a total disrespect for the law.” Id. Here, by

contrast, the district court did not rely upon Daneshvar’s decision to go to trial as evidencing a




                                                  32
Case No. 18-1101, United States v. Daneshvar


malicious intent towards the criminal justice system or resulting in disrespect for the law. Instead,

the district judge explained that his primary concern was Daneshvar’s acceptance of guilt.

          Daneshvar’s argument is similar to that raised by the defendant in Mitchell. In that case,

“[a] significant aspect of [the defendant’s] argument is that he was not involved in the . . . scheme”

and thus, the defendant argued “that he cannot take responsibility for something that he did not

do.” 681 F.3d at 884. Similarly, Daneshvar argued that he was not fully aware of the scheme, nor

was he an essential part of it. Daneshvar’s counsel spent much of the trial demonstrating that

Daneshvar was less culpable and less involved in the conspiracy than other members.

          As we held in Mitchell, it is relevant that the jury found Daneshvar had participated in the

conspiracy, which is a permissible fact for a district court’s 3553(a) analysis. “[T]he district court

found that [Daneshvar’s] continued efforts to deny his involvement demonstrated a failure to

take responsibility for his crime and a lack of remorse for the harm he had caused. The judge

could have reasonably concluded that [Daneshvar]’s dishonesty regarding important pieces of

evidence indicated that he had not fully accepted responsibility for his participation in the

conspiracy.” Id. (cleaned up) (citing United States v. Sutton, 387 F. App’x 595, 607 (6th Cir.

2010)).

          “Accordingly, ‘it was not [Daneshvar]’s exercise of his right to [a jury trial], but rather,

that he did not accept responsibility for his crime, that the district court took into account in

considering the § 3553(a) factors. This was not error.’” Id. (citing United States v. Delano, 411 F.

App’x 795, 799 (6th Cir. 2011)). In fact, the district court clarified that it recognized Daneshvar’s

right to go to trial, and this was not a basis upon which to penalize or “denegrat[e]” him.

(Sentencing Hr’g Tr., R. 107, Page ID # 588.) Rather, Daneshvar’s “failure to take responsibility

and [his] lack of remorse were two facts that the court considered in weighing the various § 3553(a)




                                                  33
Case No. 18-1101, United States v. Daneshvar


factors that it found to be most relevant to the case at hand. This was not unreasonable,” nor do

we find it to be plainly erroneous. Mitchell, 681 F.3d at 885.

             ii.     Minor Role Reduction

       Daneshvar argues that the court also erred when it denied his request for a two-level

reduction under the United States Sentencing Guidelines (“U.S.S.G.”) § 3B1.2 based on his minor

role in the conspiracy.

       The defendant bears the burden of proving a mitigating role by a preponderance of the

evidence. See United States v. Roberts, 223 F.3d 377, 379 (6th Cir. 2000). “Generally, this Court

reviews a district court’s legal conclusions regarding the Sentencing Guidelines de novo and its

factual findings for clear error, though certain exceptions apply.” United States v. Williams, 420 F.

App’x 517, 518 (6th Cir. 2011) (internal quotation marks and citation omitted). We have explained

that “[t]he ‘minor participant’ reduction is available only to a party who is ‘less culpable than most

other participants’ and ‘substantially less culpable than the average participant.’” United States v.

Lloyd, 10 F.3d 1197, 1220 (6th Cir. 1993) (quoting U.S.S.G § 3B1.2, cmt. n.3). “Whether a

defendant is entitled to a downward offense-level adjustment under U.S.S.G. § 3B1.2 depends

heavily on factual determinations by the district court, which this court reviews for clear error.”

United States v. Auston, 355 F. App’x 919, 925 (6th Cir. 2009) (internal quotation marks and

citation omitted).

       The issue arises from the district’s failure to make any factual determinations on the record.

During Daneshvar’s sentencing, defense counsel asked the court to rule on his objection to the

Presentence Report in which he asked for a two-point reduction for Daneshvar’s purported minor

role in the conspiracy. (Sentencing Hr’g Trans., R. 107, Page ID # 579–80, 582.) The district

judge stated that Daneshvar “will not be given an adjustment for [a] minor role. He was a major




                                                 34
Case No. 18-1101, United States v. Daneshvar


player.” (Id. at Page ID # 582.) The court offered no other analysis, and defense counsel did not

object.

          It is true that typically, when a defendant challenges a district court’s denial of his request

for a role reduction to his sentence, we have found that the district court did not abuse its discretion

or commit clear error if the district court provided an explanation for why it denied the defendant’s

request. But here, we are faced with the unique situation in which a district court has made no

factual findings or elaborated upon its rationale, although the sentencing judge was the same judge

who presided over the trial and thus, presumably had some insight into Daneshvar’s role. We

adopt here the rationale of the Ninth Circuit, holding that “a district court need not tick off

sentencing factors to show that it considered them,” but a court cannot, for instance, “adopt[] the

government’s argument with little elaboration.” United States v. Diaz, 884 F.3d 911, 914–15, 918

(9th Cir. 2018). In the instant case, we find that the district court erred in denying the defendant’s

role reduction request without elaboration on the record as to why the court found Daneshvar to

be a “major player.”

          Is this error harmless? “Under the harmless error test, a remand for an error at sentencing is

required unless we are certain that any such error was harmless—i.e. any such error ‘did not affect

the district court’s selection of the sentence imposed.’” United States v. Hazelwood, 398 F.3d 792,

801 (6th Cir. 2005) (quoting Williams v. United States, 503 U.S. 193, 203 (1992)).

          In determining whether Daneshvar was “less culpable than most other participants” and/or

“substantially less culpable than the average participant,” we turn to the U.S.S.G. advisory

committee notes to § 3B1.2, which provide a non-exhaustive list of factors for a court’s

consideration:




                                                    35
Case No. 18-1101, United States v. Daneshvar


       (i)     The degree to which the defendant understood the scope and structure of
               the criminal activity;
       (ii)    The degree to which the defendant participated in planning or organizing
               the criminal activity;
       (iii)   The degree to which the defendant exercised decision-making authority or
               influenced the exercise of decision-making authority;
       (iv)    The nature and extent of the defendant’s participation in the commission of
               the criminal activity, including the acts the defendant performed and the
               responsibility and discretion the defendant had in performing those acts;
       (v)     The degree to which the defendant stood to benefit from the criminal
               activity.

U.S.S.G. § 3B1.2, cmt. n.3(C).

       There was evidence that Daneshvar significantly benefitted from the criminal activity:

although he was with Mobile Doctors for approximately one year, he was paid the most of all of

the physicians employed by the company, receiving over $200,000 in salary payments plus a

$15,000 bonus. § 3B1.2, cmt. n.3(C)(v). Daneshvar also had the authority to certify that patients

were homebound, which he did even with the knowledge that many of his patients were not

homebound; he signed off on routing slips including at least three diagnoses for each patient, even

when the patient did not suffer from the diagnoses; and at times, Daneshvar personally authorized

Mobile Doctors to bill Medicare for the two highest billing codes for patients from whom the codes

did not apply. § 3B1.2, cmt. n.3(C)(iii) (iv). Although Daneshvar was not involved in the planning

or organization of Mobile Doctors, nor was he aware of every part of the scheme, he understood

how Mobile Doctors generated money from fraudulently billing Medicare because he received a

pay chart detailing the amount Mobile Doctors paid to each physician per billed Medicare code.

§ 3B1.2, cmt. n.3(C)(i) and (ii).

       For these reasons, we find that although the district court erred in its analysis, the error was

harmless because the evidence plainly demonstrated that Daneshvar was not a minor participant

in the conspiracy.




                                                 36
Case No. 18-1101, United States v. Daneshvar


            iii.   Calculation of Guidelines Range

       Daneshvar argues that his sentence was procedurally unreasonable because the district

court did not calculate the appropriate sentencing Guidelines range before pronouncing the

sentence.

       The district court began the sentencing by stating Daneshvar’s offense level, criminal

history score, and the United States Probation Office’s recommendation of a sentencing range of

63 to 78 months. (Sentencing Hr’g Tr., R. 107, Page ID # 579.) Next, the court stated that, based

upon the parties’ sentencing memoranda, it “intends to vary the sentence from the recommendation

and the guidelines.” (Id.) Thus, the court asked whether, “[i]n light of the fact that the Court

intends to grant a variance that will be rather substantial,” was it “necessary to resolve” outstanding

objections. (Id.) Defense counsel responded that although he “would say say no,” it was not

necessary to resolve the objections, counsel was under the impression that our circuit required

resolution of outstanding objections and an articulation of the Guidelines range during sentencing.

(Id. at Page ID # 579–80.) The court accepted counsel’s request and then went through each of

the outstanding objections.

       First, the court explained that as to the objection concerning the “loss amount,” it found

“the restitution amount as a compromise between what the defendant says and what the

government says” because “there hasn’t been an independent audit presented to the Court

establishing the loss by the Government.” (Id. at Page ID # 581.) The second objection dealt with

the “abuse of trust” enhancement in the Sentencing Guidelines. Defense counsel argued against

application of the enhancement, and the court agreed. The third and final objection concerned




                                                  37
Case No. 18-1101, United States v. Daneshvar


Daneshvar’s role in the offense, and, as detailed earlier, the court rejected Daneshvar’s request for

a role reduction.

         The court next moved into consideration of Daneshvar’s sentence. As we discussed earlier,

the court explained it did not find that Daneshvar had shown remorse or accepted responsibility

for his actions. The court also inquired about the sentences of Daneshvar’s co-conspirators, as

well as particular similarities and differences between the cases, to avoid sentencing disparity.

         The court then asked if the parties wished to address the court, and a lengthy discussion

ensued. After hearing arguments from both parties, the court pronounced the sentence.

         “A district court commits procedural error by ‘failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.’” United States v. Fowler, 819 F.3d 298, 304 (6th Cir. 2016) (citation

omitted). In United States v. Blackie, 548 F.3d 395, 401, 403 (6th Cir. 2008), the court determined

that it could not “meaningfully review [the defendant’s] sentence” because the district court had

not acknowledged the Guidelines range, failed to give specific reasons for its variance, and failed

to clarify whether it had rejected various Guidelines enhancements. We have held that this

“combination warrant[ed] reversal.” United States v. Turner, 536 F. App’x 614, 620 (6th Cir.

2013).

         Here, the district court began by acknowledging the recommended Guidelines sentencing

range, including Daneshvar’s criminal history score and total offense level that led to this range.

At no point did the court indicate that it considered the Guidelines range as mandatory; in fact, the

court announced that it would be varying from the Guidelines range. Next, the court considered

all of the outstanding objections and resolved them. Finally, the court provided specific reasons




                                                 38
Case No. 18-1101, United States v. Daneshvar


both for and against variance, including: (1) Daneshvar’s lack of acceptance of responsibility,

(2) sentencing disparities in comparison to Daneshvar’s co-conspirators and, (3) sentencing

disparities in comparison to other physicians who were charged under the same statute. Only then

did the court pronounce the sentence. Pursuant to our circuit’s case law, the sentence was

procedurally reasonable, and the district court did not err. 9 See also United States v. Aleo, 681

F.3d 290, 299 (6th Cir. 2012) (finding no error when the sentencing judge did not re-calculate the

Guidelines range after the defendant raised an objection to his sentencing enhancement because

the district court properly resolved the objection to the enhancement).

                                          III.    CONCLUSION

        Medicare fraud has long plagued the American healthcare system. Fraud and systematic

upcoding are estimated at roughly 10 percent of Medicare’s costs every year. The taxes spent on

prosecution of Medicare fraud add even more to the program’s costs. But, the expense and

difficulty of trying a Medicare fraud case, or indeed, any criminal case in which the defendant

chooses to go to trial, are part of the worthwhile price we pay as a people who have the

constitutional right of trial by jury. Daneshvar was able to exercise this right and his sentence does

not reflect that he was unfairly penalized in any way.

        For the reasons stated above, we AFFIRM both the district court’s rulings at trial and

Daneshvar’s sentence.




9
  We also note that after the court announced the sentence, the government requested to put into the record
the Guidelines calculation. The government stated that Daneshvar’s offense level was 20 (from a base
offense level of 6, plus a 14-point enhancement for the loss amount, and the court did not accept any other
enhancements). The court accepted this calculation, as did defense counsel, who also stated that he believed
this resulted in a Guidelines range of 37 to 46 months. Thus, the appropriate Guidelines calculation was
placed in the record for our review.


                                                    39
