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File Name: 15a0301n.06

Case No. 14-1092

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANMY TRAN,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

MICHIGAN

BEFORE: KEITH, COOK, and DONALD, Circuit Judges.

COOK, Circuit Judge. A jury convicted Defendant-Appellant Anmy Tran, a Michigan 

podiatrist, of several offenses arising from her participation in a healthcare-fraud conspiracy 

organized by Babubhai Patel, the owner of several pharmacies and home-healthcare companies 

in the greater Detroit area. Tran argues that several evidentiary rulings denied her a fair trial and 

challenges the procedural reasonableness of her sentence. We AFFIRM the district court’s 

judgment.

I.

A jury convicted Tran of participating in the following conspiracy, summarized by a prior 

panel of this court:

The scheme to defraud insurers depended on the participation of 

physicians, pharmacists, recruiters, and patients. [Babubhai] Patel paid cash 
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bribes to physicians to entice them to write patient prescriptions for expensive 

medications and controlled substances that could be billed to Medicare, Medicaid, 

or private insurers through the Patel pharmacies. He paid kickbacks to managers 

of health-related companies so that they would send patients to his pharmacies, 

and he employed “marketers” to recruit “patients” directly from the streets.

Pharmacists facilitated the criminal activity by charging insurers for 

expensive medications that were ordered from wholesale distributors and held in 

inventory but not dispensed to patients. These surplus medications were later 

returned to the supplier for credit or sold on the black market. Pharmacists also 

billed insurers for controlled substances that the pharmacists knew were illegally 

prescribed. These controlled medications included hydrocodone (Vicodin, 

Lortab), oxycodone (Oxycontin), alprazolam (Xanax), and codeine-infused cough 

syrup. When filling prescriptions, the pharmacists usually “shorted” the number 

of dosage units placed in the medication vials for patients, billed the insurers for 

the full drug quantities prescribed, and then sold the excess pills on the street.

United States v. Patel, 579 F. App’x 449, 451–52 (6th Cir. 2014).

Patel recruited Tran in 2007 to participate in this conspiracy by paying her $50,000. She 

used the money to complete the down payment of the office building that housed both her 

podiatry practice and Patel’s Highland Park Pharmacy. Patel also paid $1,200 toward each 

month’s mortgage payment, $10,000 to cover the building’s 2010 tax bill, and $17,500 to Tran 

through various intermediaries. 

In exchange, Tran prescribed many of her patients a cocktail of eight to twelve drugs:

one controlled pain medication combined with several non-controlled drugs, requested by Patel 

and his pharmacists because of their high profit margins. These patients would then proceed to 

Highland Park, where Patel’s pharmacists would dispense the full amount of controlled pain 

medication but only half of the non-controlled drugs. Highland Park would then bill the 

insurers—Medicaid, Medicare, and Blue Cross Blue Shield—for the entire prescription. Many 

patients forced the pharmacists to count out hydrocodone pills and other controlled substances at 
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the counter to ensure they received the prescribed amount, though they rarely complained about 

not receiving the full amount of non-controlled medication. And Tran always prescribed the

non-controlled medicine in the same dosage, despite some patients reporting a growing surplus.

In addition, Tran accepted patients who were recruited off of the street by other 

conspirators. She continued to prescribe controlled pain medication to these patients even after 

learning that they were known or suspected “doctor shoppers”: patients recently received the 

same type of controlled substance from a different doctor. She also referred a number of 

recruited patients to home-healthcare companies operated by Patel without conducting a proper 

examination, for which she received a $100 kickback for every patient approved by the insurer. 

Patel also paid Tran $500 for every one of her own patients referred to his home-healthcare 

services and who were approved by the insurer.

The district court tried Tran jointly with two of her co-conspirators. The jury convicted 

Tran of conspiracy to commit healthcare fraud, to distribute controlled substances, and to pay 

and receive healthcare kickbacks. Post-trial, the district court denied her motion for a judgment 

of acquittal or new trial.

At sentencing, the district court adopted the Presentence Investigation Report’s (PSR) 

findings with respect to the amount of loss and drug quantity attributable to Tran. According to 

the PSR, Tran’s role in the conspiracy cost the insurers a combined $4,475,193.40.1 This figure 

included the cost of every prescription written by Tran and filled at Highland Park 

($2,343,498.99), the costs incurred by all patients referred to one of Patel’s home-healthcare 

services ($289,858.50), and fifty percent of Tran’s bills for medical services ($1,841,835.99). 

This resulted in an adjusted offense level of twenty-eight for the combined offenses of 

 

1

The PSR’s total loss calculation appears to be eight cents short.
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conspiracy to commit healthcare fraud and conspiracy to receive healthcare kickbacks. See 

U.S.S.G. § 2B1.1(b)(1)(J). The PSR also counted 213,548 units of hydrocodone—every unit 

prescribed by Tran and filled at Highland Park—as unlawfully distributed. As a result, Tran 

received an adjusted offense level of twenty-eight on the conspiracy-to-distribute count. See id. 

§ 2D1.1(c)(7) (2013). 

After incorporating the multiple-count adjustment, the district court calculated Tran’s 

total offense level at thirty. See id. § 3D1.4(a). Because she lacked any criminal history, this

resulted in a guidelines range of 97 to 121 months’ imprisonment. After reviewing the 

sentencing factors of 18 U.S.C. § 3553, however, the district court varied downward and 

sentenced Tran to 60 months.

II.

On appeal, Tran contends that the district court abused its discretion in admitting 

statistical evidence comparing her prescriptions to other Michigan podiatrists and testimony by 

an expert pharmacist that her prescriptions raised ethical “red flags.” She also challenges her 

guidelines range, arguing that the court clearly erred in estimating the drug quantity and amount 

of loss attributable to her. We discern no abuse of discretion in the evidentiary rulings and 

conclude that any error in calculating her guidelines range proved harmless.

A. Statistical Evidence

Tran first challenges the admission of charts and testimony showing that she prescribed 

more than twice as much hydrocodone as any other Michigan podiatrist and controlled 

substances to eighty-five percent of her Medicare patients. According to this data, she ranked 

first in the state for total prescription drug costs charged to Medicare. Tran unsuccessfully

objected to these charts at trial on the ground that the “probative value [was] substantially 
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outweighed by a danger of . . . unfair prejudice, confusing the issues, [and] misleading the jury.” 

Fed. R. Evid. 403. She argued that the jury might assume she had no medical reason for 

prescribing hydrocodone to her patients based solely on the volume prescribed. She renews this

argument on appeal.

We review evidentiary rulings for abuse of discretion. United States v. Davis, 514 F.3d 

596, 611 (6th Cir. 2008). “[W]hen reviewing the balancing determinations required by Rule 403, 

this court must maximize the probative value of the challenged evidence and minimize its 

potential for unfair prejudice.” United States v. Lloyd, 462 F.3d 510, 516 (6th Cir. 2006); see 

also United States v. Layne, 192 F.3d 556, 573 (6th Cir. 1999) (holding that trial courts have 

particularly broad discretion under Rule 403). Tran fails to meet her burden under this 

deferential standard. 

As the government points out, this court has upheld the admission of statistical evidence 

under similar circumstances. See, e.g., United States v. Weinstock, 153 F.3d 272, 278 (6th Cir. 

1998) (upholding the use of comparative statistics in the prosecution of a podiatrist who charged 

insurers for unperformed medical procedures); United States v. August, 984 F.2d 705, 713 (6th 

Cir. 1992) (upholding a doctor’s conviction for illegal distribution based, in part, on evidence 

that his purchases of Schedule III cough syrup “were much greater than the purchases of the 

average doctor, pharmacy or hospital”). 

Tran attempts to distinguish this precedent on two grounds. First, she complains that 

hydrocodone carries a unique stigma because it receives “an enormous amount of unfavorable 

publicity.” She claims that a juror might base the decision to convict on emotion, not evidence. 

But we see nothing unfair about any prejudice flowing from the negative publicity surrounding 

hydrocodone abuse; the government specifically charged Tran with illegally prescribing 
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hydrocodone. See Fed. R. Evid. 403. The relative amount of negative publicity garnered by the 

drug at issue is not a principled basis for treating similar statistics differently under Rule 403. 

Second, Tran argues that the statistical evidence in Weinstock contained a “far greater volume of 

data . . . covering all aspects of the defendant’s prescription practice.” But the government 

offered complementary evidence—recorded phone calls as well as testimony from patients,

Highland Park pharmacists, and expert witnesses—showing that many of Tran’s prescriptions 

conformed to Patel’s financial interests rather than her patients’ medical needs. To the extent she

argues that the government’s focus on her Medicare patients presented the jury with a distorted 

view of her practice, she was free to counter with evidence of her non-Medicare prescriptions

and to point out the methodological shortcomings of the government’s statistics on crossexamination.

Tran also compares her case to two inapposite, extra-circuit decisions. See United States 

v. McKay, 715 F.3d 807 (10th Cir. 2013); United States v. Jones, 570 F.2d 765 (8th Cir. 1978). 

In McKay, the Tenth Circuit opined that charts showing how the defendant prescribed more 

hydrocodone and oxycodone than any other Utah physician would have been inadmissible under 

Rule 403 had the defendant not opened the door at trial. 715 F.3d at 841–42. But the McKay

court specifically contrasted the use of statistical evidence to prove distribution charges with its 

use to prove a complex healthcare-fraud conspiracy in which doctors prescribed unnecessary or 

excessive amounts of drugs. Id. at 841 (citing United States v. Merrill, 513 F.3d 1293, 1303 

(11th Cir. 2008)). Thus, the Tenth Circuit distinguished McKay from the circumstances here: a 

complex healthcare-fraud conspiracy in which Tran prescribed unnecessary hydrocodone in 

combination with an excessive quantity of non-controlled drugs.
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Jones is also distinguishable. In that case, the Eighth Circuit reversed a trial court’s 

admission of evidence showing that the defendant authored 478 prescriptions for Schedule II 

drugs over a twenty-two-month period. Jones, 570 F.2d at 767. The court noted that the 

government introduced no evidence showing that the defendant issued any of these prescriptions

without a medical reason. Id. at 769. But here, as Tran concedes, the government produced 

evidence that she wrote at least some prescriptions without a medical rationale. Neither these 

decisions nor Tran’s publicity argument persuade us that the district court abused its 

considerable discretion under Rule 403.

B. Expert Testimony

Tran next challenges the expert testimony of pharmacist Dr. William Drake, arguing that 

it exceeded the scope of his expertise. See Fed. R. Evid. 702. The government called Drake to 

testify about a pharmacist’s ethical and legal obligation to question or refuse prescriptions that 

appear to be outside the regular course of a physician’s practice. In light of his training and 

experience filling the prescriptions of podiatrists, Drake testified that he would have questioned

or refused Tran’s prescriptions because they raised ethical concerns. Tran objected to Drake’s 

testimony on the ground that his experience as a pharmacist did not qualify him to opine on the 

medical necessity of her prescriptions.2

On appeal, Tran stresses that “[w]hile Drake purported to offer his opinions from the 

perspective of a pharmacist . . . , the import of [his] opinions was a judgment on the medical 

 

2

Tran also insinuates that Drake misrepresented his medical training. But the statements

she characterizes as misinformation were Drake’s reasonable answers to questions asked by trial 

counsel on cross-examination. (See R. 1161, Trial Tr. at 129–30, 137–40, ID 13120–21, 13128–

31.) Drake explained that he considered many aspects of his pharmacological experience to fall 

within the term “medical training” and listed examples. He readily conceded that he lacked a 

physician’s training.
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decisionmaking . . . which underlay the issuance of [Tran’s] prescriptions.” She insists that 

Drake was not a physician and, therefore, could not assess whether her prescriptions came within 

the scope of her practice. But Tran cites no relevant legal authority in support of this argument

and it fails to persuade us that admission of this testimony amounted to an abuse of discretion.

Tran’s trial counsel conceded that “any opinion [Drake] gives . . . indicating that there 

should be red flags raised[ by Tran’s prescriptions] is perfectly appropriate.” It logically follows 

that Drake also possessed the requisite expertise to explain why Tran’s prescriptions raised “red 

flags.” Drake’s ability to identify suspicious prescriptions flows from the rational application of 

his training as a pharmacist. See Fed. R. Evid. 702(c)–(d) (requiring experts to “reliably appl[y]” 

“reliable principles and methods”). Drake’s training qualified him both to remark on the 

apparent invalidity of Tran’s prescriptions and to explain the basis for his assessment—i.e., that

the type and volume of Tran’s prescriptions appeared to fall outside the scope of a podiatrist’s 

practice. Cf. United States v. Smith, 573 F.3d 639, 654 (8th Cir. 2009) (holding that a 

pharmacist’s “working knowledge of what constitutes a valid prescription” could not “be 

divorced from having an awareness as to the quantity and quality of patient information a doctor 

must have in order to prescribe a particular drug”). We perceive no abuse of discretion in 

admitting Drake’s testimony.

C. Tran’s Sentence

Finally, Tran challenges the calculation of her guidelines range. She contends that the 

government failed to prove several facts underpinning the district court’s drug-quantity and 

amount-of-loss findings. Specifically, Tran disputes that every unit of hydrocodone she 

prescribed during the conspiracy was unlawfully distributed and that every prescription filled at 
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Highland Park constituted loss to the defrauded insurers. We conclude that any error by the 

district court proved harmless.

We review drug-quantity findings for clear error. United States v. Swanberg, 370 F.3d 

622, 625 (6th Cir. 2004); see also U.S.S.G. § 2D1.1, cmt. n.5. The government bears the burden 

of proving the quantity of illegally dispensed drugs attributable to the defendant’s conduct by a 

preponderance of the evidence. Swanberg, 370 F.3d at 625. Courts may draw all reasonable 

inferences from the evidence—or lack thereof—presented. See United States v. Huffman, 529 F. 

App’x 426, 431 (6th Cir.) (“[I]t was not inappropriate for the court to consider the lack of 

evidence that some of the prescriptions were legitimate.”), cert. denied, 134 S. Ct. 320 (2013); 

United States v. Leal, 75 F.3d 219, 229 (6th Cir. 1996) (“[T]he district court could have drawn 

certain inferences, [even though they were] not explicitly set forth during sentencing.”),

abrogated on other grounds by United States v. Ellerbee, 73 F.3d 105, 107 (6th Cir. 1996); cf. 

Swanberg, 370 F.3d at 625 (“Although Swanberg objected to the Presentence Report’s 

calculation of the drug quantity attributable to him, he produced no contradictory evidence at the 

hearing.”).

Although Tran acknowledges prescribing all 213,548 units of hydrocodone found by the 

district court, she maintains that “the record does not even come close to demonstrating an 

across-the-board lack of medical necessity” for them. But to show prejudicial error in her 

guidelines range, Tran would need to prove that more than half—or 113,548 units—of the 

district court’s drug-quantity finding is erroneous. See U.S.S.G. § 2D1.1(c)(7) (2013) (dictating

a sixteen-point base offense level for an amount between 100,000 and 400,000 units); Leal, 75 

F.3d at 229 (upholding drug-quantity finding where the defendant needed to show clear error 

with respect to over a thousand kilograms of controlled narcotics and the record showed, at best, 
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de minimis error). She directs us to nothing in the record that supports such a dramatic 

reduction.

The government’s statistical evidence showed that Tran prescribed twice as much 

hydrocodone to her Medicare patients as the second-ranking podiatrist in Michigan, her partner 

Dr. Meghan Lee. Lee refused to participate in Patel’s conspiracy. Although she served the same 

community of patients, her hydrocodone prescriptions totaled half of Tran’s, and these numbers 

include the prescriptions Lee renewed when covering Tran’s patients. This evidence suggests 

that the difference in hydrocodone prescriptions between the doctors resulted from Tran’s 

participation in the conspiracy. 

Furthermore, the government proved that the bulk of Tran’s prescriptions followed a 

specific pattern: a controlled pain killer—usually hydrocodone—combined with a bundle of 

eight to twelve expensive, non-controlled drugs. Drake testified that these prescription 

combinations would raise “red flags,” and the Highland Park pharmacists admitted to shorting 

the non-controlled drugs in prescriptions that fit this pattern. Through reasonable extrapolation, 

then, the conspiracy motivated at least half of all Tran’s hydrocodone prescriptions. See United 

States v. Rodriguez-Iznaga, 575 F. App’x 583, 588 (6th Cir. 2014) (allowing for the

extrapolation of evidence on reasoned, factually supported grounds), cert. denied, 135 S. Ct. 

1167 (2015). Thus, the district court committed no clear error in finding at least 106,774 units 

unlawfully dispensed. And because any figure over 100,000 units returns the same adjusted

offense level, we need not consider whether the district court erred in counting the rest.

The same is true for the district court’s loss calculation of $4,475,193.40. So long as the 

record supports a finding of at least $1 million, Tran’s combined offense level remains 

unchanged. See U.S.S.G. §§ 2B1.1(b)(1)(I), 3D1.4(a). District courts need provide only a 
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reasonable estimate of loss, which we review for clear error. Id. § 2B1.1, cmt. n.3(C); United 

States v. Poulsen, 655 F.3d 492, 512 (6th Cir. 2011). Accordingly, Tran “must carry the burden 

of demonstrating that the court’s evaluation of the loss was not only inexact but outside the 

universe of acceptable computations.” United States v. Martinez, 588 F.3d 301, 326 (6th Cir. 

2009) (quoting United States v. Raithatha, 385 F.3d 1013, 1024 (6th Cir. 2004)) (internal 

quotation marks omitted). 

As the government pressed at oral argument, the district court reasonably counted as loss 

at least eighty-five percent of Tran’s Medicare prescriptions—a measure worth $1,711,499.65. 

As discussed above, each prescription in this subset included a controlled substance like 

hydrocodone, and therefore fit the fraudulent pattern identified by the government’s witnesses. 

As further support for Tran’s offense level, her patients cost Medicare $1,069,644.42 more than 

Lee’s patients in prescription-drug costs from May 2010 to August 2011. Once again, the cost of 

Tran’s prescriptions surpassed all other podiatrists in Michigan during this period, with Lee 

coming in a distant second. The documented period also accounts for less than half the time 

Tran participated in the conspiracy. Combined with Tran’s apparent disregard for drug-seeking 

behavior in her patients receiving controlled substances, this evidence supports the finding that 

she wrote at least eighty-five percent of her Medicare prescriptions in furtherance of the 

conspiracy. And Tran offers nothing to show the medical necessity of any drug included in these 

prescriptions. See U.S.S.G. § 2B1.1, cmt. n.3(E) (allowing defendants to reduce the amount of 

loss by the fair market value of services actually rendered); id. § 2B1.1, cmt. n.3 (F)(viii) (stating 

that fraudulent healthcare bills constitute prima facie evidence of intended loss); United States v. 

Washington, 715 F.3d 975, 984–85 (6th Cir. 2013) (holding that defendants bear the burden of 

proving what part of a fraudulent bill represents services rendered). 
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With no clear error evident in at least $1,711,499.65 of the district court’s loss finding, 

Tran would have received at least a sixteen-point enhancement on the fraud count, leaving her 

total offense level and guidelines range unaltered. Thus, any error in calculating the remainder 

was harmless.

III.

We AFFIRM the district court’s judgment.