NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0078n.06 No. 10-2695 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. AL AN SI L BER, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : SUHRHEI

NRI CH, SUTTON and COOK , Circuit J udg es. SUTTON, C ircuit J udg e. A j ury convicted Dr. Alan Sil b er o f d efrauding Medica re to the tune of sever al hundred thousand dollars by presc ribing expensive medications to patients who did not need them. Silber claims the district court used the wrong m et h o d fo r selec ting the jury , mistakenly

excluded evidenc e and a pplied an inapplica

ble sentenc ing e nhance ment. We affir m.
I
. Dr. Silber worke d at a medical clinic in suburban De t ro i t from Dec ember 2006 throug h Marc h 2007. A g overnme nt investigation deter mined that the clinic was eng ag ed in l ar ge- s ca l e healthca re fra ud, g ener ating hundreds of thousands of dollars in reve nue by billing Medica re for expensive, medically un n ec es s ary drug s administered in diluted form. The idea was that Silber would presc ribe two medications—Ac thar and Cotrosy n—to homeless “pati en ts” who vi sited theNo. 10-2695

United States v. Silber clinic. The patients rec eived kickbac ks for their time and trouble. And the clinic collecte d Medica re fee s for the dr

ug s they claimed to dispense.
A fede ral g rand jury indicted Silber on one cou n t o f conspirac y to defr aud a g overnme nt healthca re benef its prog ram and six coun t s o f ex ec u ting the scheme to defr aud. See 18 U.S.C. §§ 371, 1347. At trial, t h e go vernme nt’s expert testified that the drug s wer e not medically appropr iate for the conditions Silber diag nosed. Silber offe red an expert of his own, Professor J esse Vivian, but the district court excluded his testimony afte r concluding he was not an expert on the rele vant issues. The jury

convicted Silber on a ll counts, save the conspirac y char g e, and the court sentenc ed him to 36 months, which was below the guidelines rang e of 51 to 63 months.
I I
. Silber claims that the district court failed to follow the jury -selec tion proce dures laid out in Rule 24 of the Fe dera l Rules of Criminal Procedur e. That rule require s the parties to selec t alternate jurors independe ntly from the initial g roup of jurors, see Fe d. R. Crim. P. 24(c) (1), and say s that the prosec ution and def

en se eac h rec eive an additional pere mptory challeng e to use in selec ting the alternates, see Fe d. R. Crim. P. 24(c) (4)( A). The district court instead utiliz ed a blind-draw sy stem for deter mining the alternates, in which the parties initially selec ted fourtee n undiffer entiated jurors and the c ourt cler

k randomly

desig nated two a s alterna tes befor e the jury retire d to delibera te.
Silber waived any objection to the blind draw sy stem when he ag ree d to it befor e j u ry selec tion. See Un i t ed States v. Aparco-Centeno , 280 F.3d 1084, 1088 (6th Cir. 2002). Whil e the - 2 -No. 10-2695

United States v. Silber ag ree ment was not or igina lly rec orded on the docket, the district c ourt—exercising its a uthority to supplement an incomplete rec ord, see Fe d. R
. App. P. 10(e) (2)( B) —has clar ified that “all parties ag ree d in advanc e of

jury selec tion
. . . that alternate jurors would be remove d throug h a blind draw .” R. 219.
Silber responds that the district c ourt abused its discr etion when it r esolved this “ contested issue of fac t” without holding an evidentiar y hear ing. Reply Br
. at 10. But Rule 10(e) (2)( B) “does not require that the district court hold an evidentiar y hear ing, only that it consider and settle the dispute.” United States v. Brika , 416 F.3 d 5 1 4 , 530 (6th Cir. 2005). Once it has done so, “the court’s deter

mination is conclus iv e u

n le s s inte ntionally false or plainly unrea sonable.” United States v. He rnandez , 227 F.3d 686, 695 ( 6th Cir. 2000). This determination is neither.
Silber’s appellate counsel was not prese nt at trial and conce des he cannot contest the district court’s resolution of the dispute based on persona l knowledg e. Silber Br
. at 41. And Silber has not provided an aff

idavit from his trial counsel contra dicting the district court’s acc ount. Silber instead points to a stray comment by his co-de fenda nt’s attorney , afte r the district court had chosen the two alternates, that “with all due apolog ies, we wer en’t g iven a choice
. You just said y ou wer e g oing to d o i t
. I t hink that y ou g ot to do that over ag ain or revisit it overnig ht may be.” R. 204 at 102. To Silber’s mind, this statement sug g ests that no waiver occur red—tha t the district court pressure d the parties into ag ree ing to the blind-dr aw pr ocedur e.

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United States v. Silber The better rea ding of the transcr ipt, howeve r, is that defe nse counsel wer e upset they had not been give n the opportuni ty to object when one of the t wo bl ack m em bers of the j ury was selected
as an alternate—that is, that they wer e “g iven [no] choice ” but to acc ept the result of the blind draw
. This rea ding is consistent with the prosec utor’s uncontra di ct ed s t atement in response : “We all ag ree d in advanc e to a blind draw .” R. 204 at 103. And it also explains why Silber’s trial attorney , in response to the di strict court’s que s t i on about how they could “undo this blind draw ,” said that the solution was t o “[ r]edo it and continue to redo it,” appar ently until it selec ted two of the nonblack jurors—har dly a condemnation of the use of a blind dr aw sy stem (thoug h cer tainly a curious understandingof how a

“blind” dra

w 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 deter mination that the parties ag ree d to the modified proce dure. I n the absenc e of more concr ete evidenc e that the rec ord supplement is “intentionally false or plainly unreas onable,” Hernande z , 227 F.3d at 695, we cannot say that the district court abused its discre tion.
Nor did the district court abuse its discretion in ref using 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 rele vant presc riptions we re m edically appropr iate, and on that point Vivian had nothing to add, as he conce ded. See R. 140-3 at 55. Vivian wa s a p h ar m ac i s t, not a doctor. His experience with the drug s was limit ed—having dispensed them a few time s in the late 1970s and 1980s—and he di s cl ai m ed being an expert in the diseases Silber presc ribed the drug s to trea t, R. - 4 -No. 10-2695

United States v. Silber 140-3 at 54. The district court rea sonably found that Vivian d i d not have “suff icient specia liz ed knowledg e to assist the j u ro rs i n d ec i ding the particula r issues in the case .” Kumho Tire Co. v. Carmichael , 526 U.S. 137, 156 (1999) (inter nal quotation marks omitted).
I n another context, Vivian’s expertise might have been useful. Silber sug g ested that Vivian, while not an expert on t h e d ru gs at i ssue, was an expert on the more g ener al topic of the
a p p ropriate ness of using medications for purposes not mentioned on their FDA -appr oved la b e ls
. B ut the appropr iateness of such off -l ab el ap p lications in general was not at issue; the prosec ution
conce ded that off- label use was sometimes appropr iate, and Silber could have established that point throug h cross-e x amination of the prosec ution’s medical expert. Whatever reliable expert testimony Vivian m ight have given was not rele vant here, and the di strict court could proper ly exclude it on that g round. See D aubert v. Me rrell Dow Pharm., Inc. , 509 U.S. 579, 597 (1993).
The district court also corr ectly excluded Silber’s testimony that he rec eived no overbilling notices from Medica

re while working in ear lier jobs. Silber offe red the evidenc e to show his honest char acte r. See R. 203 at 93 (“I think t h at d em o n strates his char acte r . . . .”). Although a criminal defe ndant g ener ally may introduce char acte r evidenc e, see Fe d. R. Evid. 404( a)( 2)(A) , he must do
so throug h “testimony about [hi s ] reputation or by testimony in the form of an opinion,” Fe d. R. Evid. 405(a)
. Only wher e “a person’ s char acte r or char act er t ra i t i s an essential element” of the char g e (not true here ) may the defe ndant introduce ch ar ac t er evidenc e about “re levant specific instances of

the per son’s conduc t.” Fe d. R. Evid. 405(b).

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United States v. Silber The testimony at issue falls square ly within Ru l e 4 05’s implicit prohibition. A leading trea tise provides a helpful example: “a fede ral inspector char g ed with acc epting a bribe from a meat packe r can call a char acte r witness to show his reputa tion for being honest, but he may not call other meat packe rs to testify that he did not solicit bribes from them.” 1 Kenne th S. Bro u n et al
. , McCormick on Evidenc e § 191 (discussing United States v. B enedetto , 571 F.2d 1246 (2d Cir. 1 9 7 8 ))
. S ilber’s attempt to establish his char acte r for honesty by showing that Medica re had n o t previously noticed any overbilling s from him was, if any thing, even more ham-ha

nded: rathe r than calling others to testify to specific instances in which he had not behave d dishonestly , he attempted to do so himself. The cour t properly excluded the testimony
. See Fe d. R. Evid. 404(a), 405( a).
Silber insists that the proff ere d testimony was not char acte r evidenc e, but rathe r “[e]vidence of a person’ s habi t ” admissible under Rule 406. Acc epting this argument, howeve r, would make superf luous Rule 405’s car eful delineation of when evidenc e of specific i n s t an ces of a person’ s conduct is admissible. S i lber cannot rec ast his char acte r evidenc e as evidenc e of habitually display ing g ood char acte r in order to g et around Rule 405. At least without a “habit” more concr ete than not bilking Medica

re in the past (or, more prec isely , no t being caug ht doing it), we cannot permit Silber “to circ umvent restric tions on char acte r evidenc e by repa ckag ing it as habit evidenc e.” United States v. Se rrata , 425 F.3d 886, 906 ( 10th Cir. 2005) (interna l quotation mark omitted).
J ust as we find no g rounds for reve rsal in Silber’s tri al , s o too we find no err ors in his sentenc ing. The district court proper ly applied a two-leve l sentencing enhanc ement for offe nses “involv[i ng ]
. . . the conscious or rec kless risk of death or serious bodily inju ry . ” U. S.S.G. - 6 -No. 10-2695

United States v. Silber § 2B1.1( 13)(A)
. (The provision has since been moved to U.S.S.G. § 2 B1
. 1 (1 4 )( A), but rema ins otherwise unchang ed.) The prosec ution’s expert testified that the drug s at issue prese nted just such
a ri sk, and Silber does not contest the district court’s acc eptanc e of that position on appea l. See Silber Br
. at 48. He instead argues that he was unawa re of that risk when he committed the offe nses.
Our sister c ircuits are split over whether a defenda nt must know of a risk in order to make taking that risk “re ckless,” at least in connec tion with those g uidelines that do not provide their own definition of the term. Compare United States v. McCord, Inc. , 143 F.3d 1095, 1098 (8th Cir. 1998) (def endant must be subjectively awa re of risk) with United States v. Maestas , 642 F.3d 1315, 1321 (10th Cir. 2011) (subjective awa rene ss not require d 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 be cause the district c ourt conclude d it wa s “[m] ore likely than not” that “Silber, as a trained doctor, was awa re o[f] the s er ious risks, including
weakening of the immune sy stem, loss of consciousness and liver damag e, associate d with the use” of the drug s on the clinic’s “vulner able patient population.” R. 193 at 17. Silber argues on appea l that rea sonable doctors could disag ree about the likelihood that the drug s would cause serious harm. But that does not make the court’s finding that Silber was awa re of any risk clea

rly err oneous, 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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United States v. Silber I I I
. For these re asons, we a ffirm.

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