United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 21, 2013 Decided May 23, 2014

No. 12-3094

UNITED STATES OF AMERICA,

APPELLEE

v.

JACQUELINE L. WHEELER,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cr-00151-1)

Steven N. Herman argued the cause for appellant. With 

him on the brief was Steven M. Salky. 

Katherine M. Kelly, Assistant U.S. Attorney, argued the 

cause for appellee. With her on the brief were Ronald C. 

Machen Jr., U.S. Attorney, and Elizabeth Trosman and 

Elizabeth H. Danello, Assistant U.S. Attorneys.

Before: HENDERSON, BROWN and GRIFFITH, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
2

GRIFFITH, Circuit Judge: A jury found that Dr. Jacqueline 

Wheeler, the owner of a medical clinic in Washington, D.C.,

fraudulently collected millions of dollars from Medicaid for 

procedures that were never performed. The district court 

imposed a substantial prison sentence and ordered Wheeler to 

forfeit those funds. On appeal, Wheeler challenges both her 

conviction and sentence. We reject her arguments and affirm 

the district court.

I

Wheeler owned and managed the Health Advocacy 

Center, a clinic that treated Medicaid patients. Between 

January 2006 and April 2008, Wheeler, who was wholly 

responsible for all of the Center’s medical billing, submitted 

bills to Medicaid for more than $8 million in treatment 

allegedly provided. Medicaid paid the Center roughly $3.5 

million on those bills, $3.1 million of which was for massage 

treatments.

Acting on a tip that the Center was cheating Medicaid, 

the Inspector General of the U.S. Department of Health and 

Human Services began an investigation in 2008. The FBI and 

Medicaid’s Fraud Control Unit soon joined the effort.

Investigators easily concluded that many of the Center’s bills 

to Medicaid were false. For example, several bills claimed 

that the Center had given more than twenty-four hours of 

massage therapy to a single patient on a single day. Others

reported hundreds of hours of massage therapy for days when 

only one therapist was on staff. Some sought payment for the 

treatment of patients hospitalized elsewhere.

An investigator visited the Center in late 2008, but 

Wheeler turned her away. The investigator threatened to 

return. That night, Wheeler called Acquinette Robinson, a
3

Center employee, at 4:00 a.m. and asked for help moving files 

from the clinic to Wheeler’s home. Were the files not moved 

immediately, Wheeler warned her, all of the Center’s 

employees would soon lose their jobs. Robinson refused, and 

Wheeler moved the files herself. FBI agents obtained 

warrants and searched the Center and Wheeler’s home on 

February 18, 2009, seizing documents from both locations.

On May 13, 2011, a grand jury indicted Wheeler on one 

count of healthcare fraud under 18 U.S.C. § 1347 and 

numerous counts of making false statements relating to

healthcare matters under 18 U.S.C. § 1035. The primary battle

during the eight-day trial that followed was waged over 

whether the billings submitted by Wheeler were intentionally 

false. The government sought to show that they were, 

asserting that Wheeler used her ill-gotten gains to finance a 

lavish lifestyle, and highlighting her middle-of-the-night plea

for help moving files in the wake of the rebuffed 

investigator’s threatened return. Wheeler, on the other hand, 

claimed that she had inadvertently inflated the Center’s bills 

for massage therapy fifteen-fold by misunderstanding 

Medicaid’s billing protocols. Those protocols measured time 

of treatment in units of fifteen minutes. Wheeler claimed that 

she thought each unit was a single minute, not fifteen. 

Stressing that the Center was poorly managed and 

disorganized, she asserted that her oversight of this detail was 

understandable.

The jury returned guilty verdicts against Wheeler on all 

counts. She moved for acquittal, arguing that the government 

had offered insufficient evidence of intent, and for a new trial, 

contending that some of the statements and argument at trial

had impermissibly prejudiced her. The district court denied 

Wheeler’s motions and sentenced her to concurrent sentences 

of seventy-five months’ imprisonment on the healthcare fraud 
4

count and sixty months on the false statements counts. The 

court also ordered restitution to Medicaid of the 

approximately $3.1 million paid on bills for massage therapy.

Wheeler appeals, asserting various evidentiary and 

sentencing errors by the district court. We have jurisdiction 

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 

II

Wheeler challenges four of the district court’s evidentiary 

rulings. We affirm each under an abuse of discretion standard. 

See United States v. Foster, 557 F.3d 650, 654-55 (D.C. Cir. 

2009) (evidentiary rulings are reviewed for abuse of 

discretion); United States v. Lin, 101 F.3d 760, 767-68 (D.C. 

Cir. 1996). 

A

Wheeler argues that the limitations the district court

placed on the cross-examination of Health and Human 

Services investigator Latonya Coates violated the 

Confrontation Clause of the Sixth Amendment. We disagree. 

On direct examination, Coates testified that she had 

reviewed all of the documents seized from the Center and 

Wheeler’s home and that none of them offered any support 

for the Medicaid bills listed in the indictment. Before 

beginning cross-examination, Wheeler’s counsel sought the 

admission of some of the seized documents called 

“superbills.” The record does not reveal who created the 

superbills or how they were named or used. Nevertheless, 

Wheeler’s counsel argued that the superbills would show that 

there was support for the bills Wheeler had submitted. But it 

was not readily apparent to the court how the superbills, 
5

which were confusing on their face, were connected to these

bills. The superbills were forms with “superbill” printed at the 

top. Below spaces for handwritten names and dates, there 

were printed acronyms, abbreviations, and phrases such as 

“NMS,” “ADL,” “Cryo,” and “Joint Mobilization.” On some 

of the superbills, handwritten numbers had been entered next 

to some of these acronyms, abbreviations, and phrases. The 

district court ruled that Wheeler’s counsel could use only 

those superbills that he could show were tied directly to the 

bills mentioned in the indictment.

On cross-examination, Coates confirmed that she had 

reviewed all of the seized files and stood by her testimony 

that she had seen no documents supporting the bills listed in 

the indictment. But then she went further, claiming that there 

was no support for any of the bills that the Center had 

submitted to Medicaid and not just those referred to in the 

indictment. Seizing upon this expansion of her testimony, 

Wheeler’s lawyer asked the district court to remove the 

restriction it had placed on his cross-examination, presumably 

so that he could try to show that some of the superbills were 

related to Medicaid bills not listed in the indictment. The 

court refused on the ground that using the superbills might 

confuse the jury. In line with the cross-examination limitation 

that the district court had imposed, Wheeler’s lawyer showed 

Coates two superbills that bore the same dates as two of the 

Medicaid bills specified in the indictment and pointed out to 

her that some of the handwritten numbers on those superbills 

could be added together to equal the number of units of 

treatment billed to Medicaid for those days. Coates

acknowledged the possibility that properly understood, the 

superbills might support the Medicaid bills, but that she could 

make no sense of them and found them highly confusing. At 

this point, the court cut off the cross-examination, noting that 
6

Wheeler’s counsel was free to put on his own witness to 

testify about how the superbills were used in billing.

In Wheeler’s view, requiring her lawyer to limit his 

cross-examination of Coates in these ways cut off a line of 

questioning that would have allowed him to undermine even 

more fully Coates’s testimony. Although Wheeler may be 

right that cross-examination would have been more effective 

without these limitations, they did not run afoul of the 

Confrontation Clause, which is generally satisfied as long as 

“defense counsel is able to elicit enough information to allow 

a discriminating appraisal of [a] witness’s credibility,” United 

States v. George, 532 F.3d 933, 936 (D.C. Cir. 2008) (internal 

quotation marks omitted), leaving trial judges with broad 

discretion to impose “reasonable limits” on crossexamination, see Delaware v. Van Arsdall, 475 U.S. 673, 679 

(1986). “The central question is whether the jury would have 

received a significantly different impression of the witness’s 

credibility had defense counsel been permitted to pursue” the 

line of questioning disallowed by the district court. George, 

532 F.3d at 936 (internal quotation marks omitted).

In fact, the cross-examination of Coates was quite 

effective. Not only was Wheeler’s lawyer able to show that 

the superbills might provide some support for the Center’s

bills, but he established that Coates did not understand the

superbills at all, undermining her testimony that there was 

nothing in them that was helpful to Wheeler. Additional

cross-examination of Coates using other superbills was not 

needed. The Confrontation Clause does not require a trial 

court to permit piling on. See Van Arsdall, 475 U.S. at 679 

(“[T]rial judges retain wide latitude insofar as the 

Confrontation Clause is concerned to impose reasonable 

limits on . . . cross-examination based on concerns about, 

among other things, . . . interrogation that is repetitive or only 
7

marginally relevant.”); see also George, 532 F.3d at 935-36. 

Wheeler contends that additional cross-examination would 

not have been merely repetitive. It would have allowed her to 

bolster the story that she mistook “units” for minutes. But she 

is wrong. As the district court recognized, Wheeler’s counsel

needed to put on a witness who understood the superbills to 

prove that story. Coates, who had already conceded that she 

did not comprehend them, was not that witness. 

B

Wheeler also sought to admit the superbills into evidence 

to show that the errors in the bills she submitted to Medicaid

were the result of carelessness, not fraud. Over Wheeler’s 

objection, the district court held that she could only use the 

superbills as evidence of her state of mind if she first provided 

a foundation demonstrating that she had actually relied on 

them in billing. Wheeler argues that the government’s

stipulation that the superbills were seized during the searches 

of her home and the Center laid that foundation. But 

establishing where they were found tells us nothing about 

whether they were even used in billing. It was no abuse of 

discretion to require Wheeler to show that the superbills 

played some part in the creation of the Medicaid bills. See 

FED. R. EVID. 104(b) (“When the relevance of evidence 

depends on whether a fact exists, proof must be introduced 

sufficient to support a finding that the fact does exist.”);

United States v. Burnett, 890 F.2d 1233, 1240 (D.C. Cir. 

1989).

Equally unavailing is Wheeler’s suggestion that Coates’s 

testimony that she reviewed the superbills somehow 

established that they were admissible for all purposes. Cf.

FED. R. EVID. 105 (contemplating that evidence may be 

admissible for one purpose without being admissible for all 
8

others). Even though we need not reach this particular

argument because Wheeler raised it for the first time in her 

reply brief, see Cronin v. FAA, 73 F.3d 1126, 1134 (D.C. Cir. 

1996), we fail to see how Coates’s testimony is helpful to 

Wheeler. Coates never worked at the Center. She knew 

nothing about the superbills or the manner in which they had 

been generated, let alone how they might have been used by 

the Center.

C

Wheeler faults the district court for refusing to declare a 

mistrial because of a number of allegedly prejudicial 

comments made during the trial. We find no abuse of 

discretion.

Keeping in mind that “[a] mistrial is a severe remedy—a 

step to be avoided whenever possible, and one to be taken 

only in circumstances manifesting a necessity therefor,” we 

look at whether the comments were likely to harm the 

defendant, the steps taken by the court to mitigate that harm, 

and the likelihood that conviction would have resulted 

anyway. Foster, 557 F.3d at 655 (internal quotation marks 

omitted); United States v. Gartmon, 146 F.3d 1015, 1026 

(D.C. Cir. 1998). Even where a comment has the potential to 

prejudice the defendant, we give significant weight to the 

district court’s decision to provide a “curative instruction” and 

“normally presume that a jury will follow an instruction to 

disregard” a prejudicial comment “unless there is an 

overwhelming probability that the jury will be unable to 

follow the court’s instruction[] and a strong likelihood that the 

effect of the evidence would be devastating to the defendant.”

Foster, 557 F.3d at 656 (internal quotation marks omitted).
9

Wheeler first points to a statement from Michael Kirk, 

the Center’s office manager. Kirk testified that Wheeler

would frequently submit bills on her computer while he 

worked nearby. When the prosecutor asked what work Kirk 

did at the Center, he responded: “Document forgery. Taking 

checks, scanning them. Wiping information out so that it 

could be used for whatever purposes [Wheeler] needed it.”

This accusation of malfeasance was unexpected by the 

prosecutor and unrelated to the charges Wheeler faced. The 

prosecutor immediately asked to approach the bench, the 

court excused the jury, and Wheeler moved for a mistrial. In 

response to the trial judge’s expression of significant 

displeasure, the prosecutor explained that he had hoped to 

show by his question that Wheeler alone performed billing 

activities and that Kirk used his computer for scheduling.

Satisfied, the court declined to declare a mistrial. When the 

jurors returned, the judge told them that she was striking from 

the record Kirk’s comment about document alteration: “[P]ut 

it out of your mind. It has nothing to do with this case. It’s 

irrelevant. There’s no basis for having it be in this case. And 

that means it can’t be thought about, can’t be discussed, it’s 

out. You got it?”

Kirk’s suggestion that Wheeler was pervasively involved 

in criminal activities was no doubt potentially prejudicial. Cf.

FED. R. EVID. 404(b). But the comment was brief, and, 

viewed in context, less harmful to Wheeler than she 

maintains. Cf. United States v. Venable, 269 F.3d 1086, 1090 

(D.C. Cir. 2001) (explaining that the prejudicial impact of 

comments should be assessed in context). Kirk had already 

testified that Wheeler owed him money, that he was “angry,”

“hurt,” and “upset” with Wheeler because he had “busted 

[his] butt and . . . [given his] life and [his] marriage to [his] 

job for her.” It was apparent to the jury that Kirk had ample 

reason to cast Wheeler in a bad light. In fact, Wheeler’s 
10

counsel highlighted Kirk’s bias during closing argument, 

contending that he had a strong motive to fabricate his 

testimony about her. More importantly, the district court 

immediately struck Kirk’s statement from the record and 

admonished the jury to disregard it in strong terms. 

Finally, it is highly unlikely that Kirk’s accusation was a 

significant factor in the jury’s determination. Wheeler would 

have been convicted in any event. The prosecution put on 

overwhelming evidence that Wheeler alone was responsible 

for all billing and that many of the bills she submitted to 

Medicaid were simply false. And her middle-of-the-night plea 

for help transferring files from the Center to her home added 

significant circumstantial evidence that she knew a search of 

the files would show the bills were fraudulent. Compare 

United States v. Eccleston, 961 F.2d 955, 961-62 (D.C. Cir. 

1992) (concluding that a mistrial should have been declared 

where the improperly admitted testimony was the only thing 

directly tying the defendant to the crime). 

Wheeler points next to the prosecutor’s closing argument. 

Referring to the explanation of an expert witness that thirty 

percent of Medicaid payments come from local taxes and 

seventy percent from federal taxes, the prosecutor declared, 

“A hundred percent . . . [came] from hardworking taxpayers.” 

That money, he continued, was “never intended to pay for 

Jacqueline Wheeler’s million-dollar house in Chevy Chase, 

Maryland,” her “purchase [of] beachfront property in . . . 

Florida,” or “employees to go to her house . . . to do her hair, 

her mother’s hair, to cook for her.” Defense counsel objected 

immediately and in a sidebar contended that this line of 

argument warranted a mistrial. Acknowledging that the 

comments were a “little inflammatory,” the district court did 

not declare a mistrial, but warned the prosecutor that he 

“better be careful.” The next morning, Wheeler’s counsel 
11

announced that he had a curative jury instruction the court 

should use. The court did so, telling the jury that it was 

“entirely improper for you to consider the fact that Medicaid

is indirectly funded by the taxpayer and I instruct you that you 

cannot consider this in any way, and the reference in the 

closing to taxpayers is stricken.” 

To be sure, the prosecutor’s statement posed some risk of

inflaming the jurors by suggesting that taxpayers (including, 

by implication, them) were the victims of Wheeler’s fraud. 

But the district court gave a strong, curative instruction, 

which we must presume that the jury followed, Foster, 557 

F.3d at 656, and, once again, the significant evidence of 

Wheeler’s guilt swamped any possible problem the 

instruction may not have addressed. 

D

Wheeler argues that the testimony of Dr. Sheila Jones, a 

gerontologist who did work at the Center, provides yet 

another ground to argue that the jury was unfairly prejudiced. 

For reasons that are unclear, the prosecutor asked Jones a 

series of questions about the Center’s developmentallydisabled patients. Jones testified that the Center was the 

“custodian” of monthly living stipends Social Security sent 

directly to the Center as the “representative payee” of these 

patients. From these funds, the Center took care of the 

housing and daily living needs of these patients, such as 

making sure they took their medications and ensuring that 

their apartments were clean and stocked with food. 

Apparently wanting to clarify that the Center’s use of those

funds was not at issue, the district court asked for 

confirmation from Jones that the money was in fact used for 

the care of these patients. Unexpectedly, Jones answered 

“no.” Surprised, the court immediately dismissed the jury. To 
12

the parties, the court expressed concern that Jones might have

suggested that Wheeler was pocketing the stipends. Jones 

assured the court that she had no idea how the money was 

spent. Upon the jury’s return, the court instructed the jurors, 

“there’s no suggestion there’s been any impropriety regarding 

any of” the living stipends and cautioned that “the money is 

not at issue in this case, and I didn’t want you to think from 

my questions that I was raising any problem here.” 

At the time, Wheeler did not object to the instruction or

ask for a mistrial. After the jury returned its verdict, however, 

Wheeler moved for a new trial, arguing that she was unfairly 

prejudiced by the cumulative impact of Jones’s testimony,

Kirk’s misstep, and the prosecutor’s overreach. The district 

court denied that motion.

Trial courts enjoy broad discretion in ruling on a motion 

for a new trial. See Gaither v. United States, 413 F.2d 1061, 

1078 (D.C. Cir. 1969) (explaining that this discretion extends 

to both the trial court’s “actual decision” and “what [it] 

considers before making that decision”). Federal Rule of 

Criminal Procedure 33(a) instructs that “the court may vacate 

any judgment and grant a new trial if the interest of justice so 

requires.” See FED. R. CRIM. P. 33(a) (emphasis added). The 

rules do “not define ‘interests of justice’” and “courts have 

had little success in trying to generalize its meaning.” United 

States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). We have 

held that granting a new trial motion is warranted only in 

those limited circumstances where “a serious miscarriage of 

justice may have occurred.” United States v. Rogers, 918 F.2d 

207, 213 (D.C. Cir. 1990) (internal quotation marks omitted). 

Once again, as it did in rejecting Wheeler’s motions of 

mistrial, the district court recognized that any improper

prejudice from Jones’s comments, whether standing alone or 
13

in combination with the others, was cabined by the court’s 

curative instructions and overwhelmed by the evidence of 

Wheeler’s guilt. We see no basis to disturb the district court’s 

discretionary assessment.

III

A

Wheeler’s first challenge to her sentence invokes the 

Double Jeopardy Clause, which she argues the district court 

violated by sentencing her under separate criminal statutes for 

the same conduct. Reviewing Wheeler’s argument de novo, 

we uphold the district court’s determination. See United 

States v. McCallum, 721 F.3d 706, 709 (D.C. Cir. 2013).

The Double Jeopardy Clause bars a sentencing court 

from imposing multiple punishments for the same conduct

absent clear indication that Congress intended that result. See 

Ball v. United States, 470 U.S. 856, 861 (1985); United States 

v. Mahdi, 598 F.3d 883, 887-89 (D.C. Cir. 2010). In 

Blockburger v. United States, the Supreme Court told us how 

to determine whether different statutes punish the same 

conduct. 284 U.S. 299, 304 (1932). We look solely to the 

statutes, rather than the facts of a particular matter, to see if 

“each . . . requires proof of a fact which the other does not.” 

Mahdi, 598 F.3d at 888 (internal quotation marks omitted); 

see United States v. Weathers, 186 F.3d 948, 954 (D.C. Cir. 

1999). If each statute does, neither is a “lesser included 

offense of the other,”* and the Double Jeopardy Clause is no 

 * If the elements of one crime (Crime A) “are a subset of the 

elements” of another crime (Crime B), then Crime A is a lesser 

included offense of Crime B. Schmuck v. United States, 489 U.S. 

705, 716 (1989). 
14

bar to sentencing under both, because statutes that require 

different proof penalize different conduct. Mahdi, 598 F.3d at 

888; United States v. McLaughlin, 164 F.3d 1, 8-9 (D.C. Cir. 

1998). 

The statutes in Title 18 under which Wheeler was 

sentenced penalize different conduct. Section 1347 punishes a 

person who (1) either “knowingly and willfully executes, or

attempts to execute, a scheme or artifice . . . in connection 

with the delivery of or payment for health care . . . services,”

and (2) does so to defraud a healthcare benefit program.

Section 1035 imposes punishment where a person (1) either 

“falsifies, conceals, or covers up by any trick, scheme, or 

device a material fact,” or “makes any materially false, 

fictitious, or fraudulent statements or representations, or 

makes or uses any materially false writing or document,” and

(2) does so “knowingly and willfully” in connection with 

payment for healthcare. Wheeler’s argument that § 1035 is a 

lesser included offense of § 1347 is unpersuasive. Given that 

§ 1347 merely requires an attempt to execute a scheme or 

artifice to defraud, whereas § 1035 requires actual 

falsification or making a false or fraudulent statement, some 

violations of § 1347 might not be violations of § 1035.

Statutes that overlap but retain different elements pose no risk 

of double jeopardy. 

B

In sentencing Wheeler, the district court applied the 

enhancement in the Sentencing Guidelines for those who 

abuse a position of trust. See U.S.S.G. § 3B1.3. Wheeler 

contends that those who submit bills to Medicaid do not 

occupy such a position. But because she never raised that 

argument before the district court, our review is limited to 

assessing whether the district court committed a “clear or 
15

obvious” error. See Puckett v. United States, 129 S. Ct. 1423, 

1429 (2009); United States v. Burroughs, 613 F.3d 233, 240-

41 (D.C. Cir. 2010). 

This court has not yet considered whether those who seek 

payment from the government for the provision of medical 

services occupy positions of trust vis-à-vis the government, 

but the majority of circuits that have considered the issue have 

held they do. See United States v. Hoogenboom, 209 F.3d 

665, 671 (7th Cir. 2000); United States v. Ntshona, 156 F.3d 

318, 321 (2d Cir. 1998); United States v. Rutgard, 116 F.3d 

1270, 1293 (9th Cir. 1997); United States v. Adam, 70 F.3d 

776, 782 (4th Cir. 1995); cf. United States v. Hodge, 259 F.3d 

549, 555-57 (6th Cir. 2001) (applying enhancement for 

fraudulent billing of a non-governmental medical insurer);

United States v. Sherman, 160 F.3d 967, 970-71 (3d Cir. 

1998) (same); United States v. Iloani, 143 F.3d 921, 923 (5th 

Cir. 1998) (same). But see United States v. Garrison, 133 

F.3d 831, 837-42 (11th Cir. 1998) (concluding such 

individuals do not occupy positions of trust vis-à-vis the 

government). Taking no view on the merits of the matter 

because it was not properly preserved, we conclude that the 

district court did not commit a clear or obvious error by ruling 

in a manner that was consistent with this majority rule. Cf. 

United States v. Andrews, 532 F.3d 900, 909 (D.C. Cir. 2008) 

(finding the absence of plain error partly because of a circuit 

split on the issue).

C

Wheeler challenges the district court’s order to forfeit

$3,168,559.28, the amount Medicaid paid the Center for 

massage therapy between January 2006 and April 2008. She 

argues that any forfeiture should have been limited to 

$482,161.92, the amount Medicaid paid on the bills set forth 
16

in the indictment. Wheeler did not raise this objection below, 

however, and we see no plain error in the district court’s 

forfeiture and restitution awards. Wheeler also argues that the 

district court erred in calculating her Guidelines offense level 

using $3,168,559.28, rather than $482,161.92, as the loss 

amount. But Wheeler had urged the district court to “find that 

the loss amount is greater than $2.5 million and less than $7 

million.” Doing so, she lost her opportunity to assert a 

different amount on appeal. A litigant cannot exploit an error 

on appeal that she invited the district court to commit. See 

United States v. Harrison, 103 F.3d 986, 992 (D.C. Cir. 

1997). Even Wheeler tacitly concedes the point. Her reply 

brief offers no response to the government’s assertion that she 

waived this argument. 

IV

Because all of Wheeler’s attacks on her conviction and 

sentence lack merit, we affirm.