               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 12a0078n.06

                                          No. 10-2695

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                 FILED
UNITED STATES OF AMERICA,                       )                            Jan 23, 2012
                                                )                      LEONARD GREEN, Clerk
       Plaintiff-Appellee,                      )
                                                )
v.                                              )   ON APPEAL FROM THE UNITED
                                                )   STATES DISTRICT COURT FOR THE
ALAN SILBER,                                    )   EASTERN DISTRICT OF MICHIGAN
                                                )
       Defendant-Appellant.                     )


       Before: SUHRHEINRICH, SUTTON and COOK, Circuit Judges.


       SUTTON, Circuit Judge. A jury convicted Dr. Alan Silber of defrauding Medicare to the

tune of several hundred thousand dollars by prescribing expensive medications to patients who did

not need them. Silber claims the district court used the wrong method for selecting the jury,

mistakenly excluded evidence and applied an inapplicable sentencing enhancement. We affirm.


                                               I.


       Dr. Silber worked at a medical clinic in suburban Detroit from December 2006 through

March 2007. A government investigation determined that the clinic was engaged in large-scale

healthcare fraud, generating hundreds of thousands of dollars in revenue by billing Medicare for

expensive, medically unnecessary drugs administered in diluted form. The idea was that Silber

would prescribe two medications—Acthar and Cotrosyn—to homeless “patients” who visited the
No. 10-2695
United States v. Silber

clinic. The patients received kickbacks for their time and trouble. And the clinic collected Medicare

fees for the drugs they claimed to dispense.


       A federal grand jury indicted Silber on one count of conspiracy to defraud a government

healthcare benefits program and six counts of executing the scheme to defraud. See 18 U.S.C.

§§ 371, 1347. At trial, the government’s expert testified that the drugs were not medically

appropriate for the conditions Silber diagnosed. Silber offered an expert of his own, Professor Jesse

Vivian, but the district court excluded his testimony after concluding he was not an expert on the

relevant issues. The jury convicted Silber on all counts, save the conspiracy charge, and the court

sentenced him to 36 months, which was below the guidelines range of 51 to 63 months.


                                                  II.


       Silber claims that the district court failed to follow the jury-selection procedures laid out in

Rule 24 of the Federal Rules of Criminal Procedure. That rule requires the parties to select alternate

jurors independently from the initial group of jurors, see Fed. R. Crim. P. 24(c)(1), and says that the

prosecution and defense each receive an additional peremptory challenge to use in selecting the

alternates, see Fed. R. Crim. P. 24(c)(4)(A). The district court instead utilized a blind-draw system

for determining the alternates, in which the parties initially selected fourteen undifferentiated jurors

and the court clerk randomly designated two as alternates before the jury retired to deliberate.


       Silber waived any objection to the blind draw system when he agreed to it before jury

selection. See United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir. 2002). While the

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agreement was not originally recorded on the docket, the district court—exercising its authority to

supplement an incomplete record, see Fed. R. App. P. 10(e)(2)(B)—has clarified that “all parties

agreed in advance of jury selection . . . that alternate jurors would be removed through a blind draw.”

R. 219.


          Silber responds that the district court abused its discretion when it resolved this “contested

issue of fact” without holding an evidentiary hearing. Reply Br. at 10. But Rule 10(e)(2)(B) “does

not require that the district court hold an evidentiary hearing, only that it consider and settle the

dispute.” United States v. Brika, 416 F.3d 514, 530 (6th Cir. 2005). Once it has done so, “the

court’s determination is conclusive unless intentionally false or plainly unreasonable.” United States

v. Hernandez, 227 F.3d 686, 695 (6th Cir. 2000). This determination is neither.


          Silber’s appellate counsel was not present at trial and concedes he cannot contest the district

court’s resolution of the dispute based on personal knowledge. Silber Br. at 41. And Silber has not

provided an affidavit from his trial counsel contradicting the district court’s account. Silber instead

points to a stray comment by his co-defendant’s attorney, after the district court had chosen the two

alternates, that “with all due apologies, we weren’t given a choice. You just said you were going to

do it. I think that you got to do that over again or revisit it overnight maybe.” R. 204 at 102. To

Silber’s mind, this statement suggests that no waiver occurred—that the district court pressured the

parties into agreeing to the blind-draw procedure.




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       The better reading of the transcript, however, is that defense counsel were upset they had not

been given the opportunity to object when one of the two black members of the jury was selected

as an alternate—that is, that they were “given [no] choice” but to accept the result of the blind draw.

This reading is consistent with the prosecutor’s uncontradicted statement in response: “We all

agreed in advance to a blind draw.” R. 204 at 103. And it also explains why Silber’s trial attorney,

in response to the district court’s question about how they could “undo this blind draw,” said that

the solution was to “[r]edo it and continue to redo it,” apparently until it selected two of the non-

black jurors—hardly a condemnation of the use of a blind draw system (though certainly a curious

understanding of how a “blind” draw should work). R. 204 at 103.


       This more localized objection—to the result of the blind draw, not the blind draw itself—is

consistent with the district court’s supplemental determination that the parties agreed to the modified

procedure. In the absence of more concrete evidence that the record supplement is “intentionally

false or plainly unreasonable,” Hernandez, 227 F.3d at 695, we cannot say that the district court

abused its discretion.


       Nor did the district court abuse its discretion in refusing to permit Professor Vivian to testify

as an expert. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997). The disputed issue in the case

was whether the relevant prescriptions were medically appropriate, and on that point Vivian had

nothing to add, as he conceded. See R. 140-3 at 55. Vivian was a pharmacist, not a doctor. His

experience with the drugs was limited—having dispensed them a few times in the late 1970s and

1980s—and he disclaimed being an expert in the diseases Silber prescribed the drugs to treat, R.

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140-3 at 54. The district court reasonably found that Vivian did not have “sufficient specialized

knowledge to assist the jurors in deciding the particular issues in the case.” Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 156 (1999) (internal quotation marks omitted).


       In another context, Vivian’s expertise might have been useful. Silber suggested that Vivian,

while not an expert on the drugs at issue, was an expert on the more general topic of the

appropriateness of using medications for purposes not mentioned on their FDA-approved labels. But

the appropriateness of such off-label applications in general was not at issue; the prosecution

conceded that off-label use was sometimes appropriate, and Silber could have established that point

through cross-examination of the prosecution’s medical expert. Whatever reliable expert testimony

Vivian might have given was not relevant here, and the district court could properly exclude it on

that ground. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).


       The district court also correctly excluded Silber’s testimony that he received no overbilling

notices from Medicare while working in earlier jobs. Silber offered the evidence to show his honest

character. See R. 203 at 93 (“I think that demonstrates his character . . . .”). Although a criminal

defendant generally may introduce character evidence, see Fed. R. Evid. 404(a)(2)(A), he must do

so through “testimony about [his] reputation or by testimony in the form of an opinion,” Fed. R.

Evid. 405(a). Only where “a person’s character or character trait is an essential element” of the

charge (not true here) may the defendant introduce character evidence about “relevant specific

instances of the person’s conduct.” Fed. R. Evid. 405(b).



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       The testimony at issue falls squarely within Rule 405’s implicit prohibition. A leading

treatise provides a helpful example: “a federal inspector charged with accepting a bribe from a meat

packer can call a character witness to show his reputation for being honest, but he may not call other

meat packers to testify that he did not solicit bribes from them.” 1 Kenneth S. Broun et al.,

McCormick on Evidence § 191 (discussing United States v. Benedetto, 571 F.2d 1246 (2d Cir.

1978)). Silber’s attempt to establish his character for honesty by showing that Medicare had not

previously noticed any overbillings from him was, if anything, even more ham-handed: rather than

calling others to testify to specific instances in which he had not behaved dishonestly, he attempted

to do so himself. The court properly excluded the testimony. See Fed. R. Evid. 404(a), 405(a).


       Silber insists that the proffered testimony was not character evidence, but rather “[e]vidence

of a person’s habit” admissible under Rule 406. Accepting this argument, however, would make

superfluous Rule 405’s careful delineation of when evidence of specific instances of a person’s

conduct is admissible. Silber cannot recast his character evidence as evidence of habitually

displaying good character in order to get around Rule 405. At least without a “habit” more concrete

than not bilking Medicare in the past (or, more precisely, not being caught doing it), we cannot

permit Silber “to circumvent restrictions on character evidence by repackaging it as habit evidence.”

United States v. Serrata, 425 F.3d 886, 906 (10th Cir. 2005) (internal quotation mark omitted).


       Just as we find no grounds for reversal in Silber’s trial, so too we find no errors in his

sentencing. The district court properly applied a two-level sentencing enhancement for offenses

“involv[ing] . . . the conscious or reckless risk of death or serious bodily injury.” U.S.S.G.

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§ 2B1.1(13)(A). (The provision has since been moved to U.S.S.G. § 2B1.1(14)(A), but remains

otherwise unchanged.) The prosecution’s expert testified that the drugs at issue presented just such

a risk, and Silber does not contest the district court’s acceptance of that position on appeal. See

Silber Br. at 48. He instead argues that he was unaware of that risk when he committed the offenses.


          Our sister circuits are split over whether a defendant must know of a risk in order to make

taking that risk “reckless,” at least in connection with those guidelines that do not provide their own

definition of the term. Compare United States v. McCord, Inc., 143 F.3d 1095, 1098 (8th Cir. 1998)

(defendant must be subjectively aware of risk) with United States v. Maestas, 642 F.3d 1315, 1321

(10th Cir. 2011) (subjective awareness not required if risk was obvious); United States v. Lucien, 347

F.3d 45, 56–57 (2d Cir. 2003) (same); United States v. Johansson, 249 F.3d 848, 858 (9th Cir. 2001)

(same). We need not take sides on this debate because the district court concluded it was “[m]ore

likely than not” that “Silber, as a trained doctor, was aware o[f] the serious risks, including

weakening of the immune system, loss of consciousness and liver damage, associated with the use”

of the drugs on the clinic’s “vulnerable patient population.” R. 193 at 17. Silber argues on appeal

that reasonable doctors could disagree about the likelihood that the drugs would cause serious harm.

But that does not make the court’s finding that Silber was aware of any risk clearly erroneous, as it

must have been in order to justify our intervention. See Gall v. United States, 552 U.S. 38, 51

(2007).




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                                       III.


       For these reasons, we affirm.




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