PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4798

UNITED STATES OF AMERICA,

 Plaintiff - Appellant.

v.

AMIR A. BAJOGHLI,

 Defendant - Appellee.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Gerald Bruce Lee, District 

Judge. (1:14-cr-00278-GBL-1)

Argued: March 25, 2015 Decided: May 11, 2015

Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Reversed and remanded by published opinion. Judge Niemeyer 

wrote the opinion, in which Judge Floyd and Senior Judge

Hamilton joined.

ARGUED: Paul Nathanson, OFFICE OF THE UNITED STATES ATTORNEY, 

Alexandria, Virginia, for Appellant. Peter Hugh White, SCHULTE 

ROTH & ZABEL LLP, Washington, D.C., for Appellee. ON BRIEF: 

Dana J. Boente, United States Attorney, Matthew Burke, Assistant 

United States Attorney, Katherine L. Wong, Assistant United 

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Alexandria, Virginia, for Appellant. Joe Robert Caldwell, Jr., 
2

BAKER BOTTS LLP, Washington, D.C.; Kirk Ogrosky, Murad Hussain, 

ARNOLD & PORTER LLP, Washington, D.C., for Appellee.
3

NIEMEYER, Circuit Judge:

Dr. Amir Bajoghli, a board-certified dermatologist, was 

indicted for executing a “scheme or artifice to defraud” when 

billing public and private healthcare benefit programs during

the period from January 2009 through August 2012, in violation

of 18 U.S.C. § 1347, and for related offenses. The indictment 

set forth, in 53 of its 60 counts, particular “executions” of 

the fraudulent scheme. 

On September 30, 2014, several weeks before the scheduled 

trial date of October 22, 2014, Bajoghli filed a motion to 

strike as unduly prejudicial certain financial details alleged 

in Paragraph 50 of the indictment; on October 13, he filed a 

motion in limine to exclude evidence of post-scheme conduct that 

the government intended to introduce to show his consciousness 

of guilt; and on October 20, he filed a motion in limine to 

exclude all evidence of the scheme that was not directly related 

to one of the 53 specifically charged executions. The district 

court granted all three motions, the latter two on the day 

before the trial was scheduled to begin. On the same day, the 

government filed this interlocutory appeal, pursuant to 18 

U.S.C. § 3731, challenging the rulings. 

Because we conclude that the district court’s rulings 

unduly restricted the latitude reasonably necessary for the 

government to carry its burden of proof, we reverse and remand.
4

I

Bajoghli is the owner of the Skin and Laser Surgery Center, 

a medical practice that operates from three offices in Virginia 

and one in Washington, D.C., and that specializes in skin 

diseases and the performance of Mohs micrographic surgery. 

According to the indictment, Mohs surgery is a “highly 

lucrative,” “specialized surgical technique for the removal of 

skin cancer from healthy skin” that is “generally performed on 

sensitive areas of the body, such as the head and neck, where 

preservation of healthy tissue and cosmetic appearance are 

particularly important.”

On August 12, 2014, the grand jury returned a 60-count 

indictment against Bajoghli, charging: 53 counts of healthcare 

fraud, in violation of 18 U.S.C. § 1347; 6 counts of aggravated 

identity theft committed in connection with the scheme to 

defraud, in violation of 18 U.S.C. § 1028A; and 1 count of 

obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2). 

The indictment alleged that over a three-and-one-half year 

period -- from January 2009 through August 2012 -- Bajoghli 

“knowingly and willfully execute[d] . . . a scheme and artifice 

to defraud and to obtain, by means of materially false and 

fraudulent pretenses, . . . money owned by and under the custody 

and control of health care benefit programs, in connection with 
5

the delivery of health care benefits, items, and services.” 

More particularly, seventeen counts alleged executions of the 

scheme in which Bajoghli routinely diagnosed patients with skin 

cancer, even though they did not, in fact, have cancer, and then 

performed the medically unnecessary Mohs surgery on benign 

tissue. Fifteen counts alleged executions of the scheme in 

which Bajoghli directed “unlicensed and unqualified medical 

assistants” to perform wound closures on the Mohs surgery 

patients and then billed the healthcare benefit programs as if 

he personally had performed or supervised the closures, thereby

claiming more money than he was entitled to under the 

reimbursement schedule. Ten counts alleged executions of the 

scheme in which Bajoghli billed for services that he claimed he 

had personally performed when, in fact, they had been performed 

by non-doctors, again allowing him to claim a higher 

reimbursement than he would have been allowed to claim had he 

disclosed that non-doctors had performed the services. And 

eleven counts alleged executions in which Bajoghli submitted 

bills “for preparing and analyzing [skin pathology] slides” 

when, in fact, he had personally performed neither service, but 

instead had hired outside contractors to perform the services at 

a cost far below the amount he claimed from the programs. 

Bajoghli filed three pretrial motions to limit the 

government’s evidence against him at trial: the September 30 
6

motion to strike allegations of certain financial details from 

Paragraph 50 of the indictment; the October 13 motion in limine

to exclude evidence of post-scheme conduct, which the government 

planned to introduce to show consciousness of guilt; and the

October 20 motion in limine to exclude any evidence that was not 

directly related to one of the 53 executions specifically 

charged in the indictment. 

In the September 30 motion, Bajoghli sought to strike from

Paragraph 50 the allegation that he “regularly billed the health 

care benefit programs $300 to $450 per slide.” Paragraph 50 

alleged in full:

The defendant fraudulently submitted claims to 

patients’ health care benefit programs for preparing 

the permanent section slides and analyzing those 

slides, when he actually performed neither service. 

The defendant regularly billed the health care benefit 

programs $300 to $450 per slide, when he had paid the 

Ohio company and the dermatopathologist a total of 

approximately $15 per slide for actually rendering the 

services.

(Emphasis added). Because healthcare benefit programs reimburse 

physicians at a predetermined rate, Bajoghli claimed that

evidence of what he billed would be unfairly prejudicial because 

those amounts did not represent what he actually expected to 

receive from the programs. The district court granted 

Bajoghli’s motion and, in doing so, also excluded, sua sponte, 

any evidence of “the fees or payments Defendant allegedly made 

to outside sources to perform” these services -- that is, the 
7

$15 per slide paid to outside contractors. The court stated 

that the government could introduce evidence to prove that 

Bajoghli “would have been paid less (or not at all) had the 

claims not been materially false,” but that it could not state 

the specific dollar amounts.

In the October 13 motion, Bajoghli sought to exclude 

evidence of actions that he had taken after the charged scheme 

had ended, which the government planned to introduce at trial to 

show his consciousness of guilt. The government intended to 

show that after Bajoghli was interviewed by law enforcement, 

(1) he immediately stopped sending pathology slides to outside 

contractors; (2) he stopped performing Mohs surgery without a 

supporting biopsy; and (3) he deleted scheduling data for past 

wound repairs that were performed by medical assistants. 

Bajoghli argued that this evidence was irrelevant; that it was 

evidence of subsequent remedial measures, which is barred by 

Federal Rule of Evidence 407; and that, if admitted at trial, it 

would be unfairly prejudicial, in violation of Federal Rule of 

Evidence 403. The district court did not rule on this motion 

until it ruled on the October 20 motion.

In the October 20 motion, Bajoghli sought to exclude 

“volumes of irrelevant, uncharged misconduct” evidence, as he 

characterized it, that related to his fraudulent conduct during 

the three-and-one-half year period of the scheme but that was 
8

not directly tied to any of the 53 charged executions. He 

argued that because this evidence was not directly relevant to 

any of the 53 charged counts, it was therefore improper 

“[p]ropensity evidence” offered only to show the defendant’s bad 

character, in violation of Federal Rule of Evidence 404(b). He 

also argued that by waiting until so close to the date of trial 

to give him notice of its intent to introduce this evidence, the 

government failed to comply with the notice requirement of 

Federal Rule of Evidence 404(b)(2).

On October 21, the day before the scheduled trial date, the 

district court issued an order granting both the October 13 and 

October 20 motions. In doing so, the court ruled, without 

explanation, that “[a]ll testimony is . . . limited to the 

53 charges in the indictment,” thus excluding evidence of 

Bajoghli’s uncharged conduct. And in excluding evidence of the 

defendant’s post-scheme conduct, it gave as reasons that the 

government had not provided adequate notice of its intent to 

introduce this “prior ‘bad act’ evidence,” as required by 

Federal Rule of Evidence 404(b)(2), and, in any event, that the 

evidence would be excluded under Federal Rule of Evidence 403, 

as “the probative value of [the post-scheme] evidence is 

substantially outweighed by the danger of unfair prejudice.”

The government filed this interlocutory appeal, seeking 

review of the district court’s pretrial evidentiary rulings. 
9

II

The government first challenges the district court’s ruling 

limiting “[a]ll testimony . . . to the 53 charges of the 

indictment” and thus excluding evidence of Bajoghli’s uncharged 

conduct in furtherance of the scheme during the three-and-onehalf year period. It notes that this ruling is especially

debilitating because Bajoghli’s criminal intent is hotly 

contested in this case, and it therefore contends that it needs 

to rebut the defense that the charged transactions were 

“isolated mistakes” by demonstrating that it did not merely 

“cherry pick” aberrant transactions. As it argues, it must be 

able to prove the entire scheme, including Bajoghli’s 

intentional and willful conduct in executing it. Such a burden, 

it maintains, requires that it be allowed to introduce evidence 

that, although perhaps not directly related to any of the 53

executions charged, is nonetheless relevant to proving the 

scheme itself. The government warns that if it were not able to 

offer evidence of uncharged executions in proving the scheme, it 

would have to charge hundreds, if not thousands, of counts in 

every large-scale healthcare-fraud case, such as this one. 

Bajoghli maintains that the district court correctly 

concluded that the evidence at trial must relate to one of the 

specifically charged executions of the fraudulent scheme and 

that “evidence of an uncharged fraudulent scheme should not be 
10

admitted.” He asserts that the government’s brief paints with 

too broad a brush, ignoring the 53 specific and discrete charges 

it brought under § 1347. As he argues, “the evidence at trial 

must relate to a specific allegation of fraud that the jury will 

have to consider.” Because, as he contends, any evidence of 

uncharged conduct would be only “loosely relevant” to the 

charged executions, the evidence should be excluded under 

Rule 403 as unfairly prejudicial and under Rule 404(b), 

including Rule 404(b)(2)’s notice requirement, as “other acts” 

evidence.

The scope of relevant evidence at trial is, of course, 

dictated by the indictment. In this case, however, Bajoghli’s 

position reveals a misunderstanding of the nature of the charges 

in the indictment and the scope of proof that is relevant. 

Section 1347 punishes “[w]hoever knowingly and willfully 

executes . . . a scheme . . . to defraud any health care benefit 

program” when delivering healthcare services. 18 U.S.C. 

§ 1347(a)(1) (emphasis added). A “scheme to defraud” is thus an 

element of the offense. See United States v. McLean, 715 F.3d 

129, 137-38 (4th Cir. 2013) (“To sustain a conviction under

18 U.S.C. § 1347, the government [is] required to prove beyond a 

reasonable doubt that [the defendant] knowingly and willfully 

executed a scheme to defraud insurers by billing for medically 

unnecessary procedures” (emphasis added)). While fraud can be 
11

committed simply by engaging in an isolated transaction, a 

scheme to defraud requires a plot, plan, or arrangement that is 

executed by a fraudulent transaction. See Black’s Law 

Dictionary 1546 (10th ed. 2014) (defining “scheme” as “[a]

systemic plan; a connected or orderly arrangement”; or “[a]n 

artful plot or plan, [usually] to deceive others”).

In this case, the scheme alleged in the indictment is 

described as encompassing four types of conduct, beginning in 

January 2009 and continuing through August 2012. And although 

the indictment charged only 53 “executions” of the scheme in 

53 separate counts, it also alleged that each particular 

execution was “part of the scheme and artifice to defraud.” 

Thus, the indictment charged that “for the purpose of executing 

the aforementioned scheme and artifice,” described earlier to 

have lasted from January 2009 through August 2012, the defendant 

engaged in the particularly described fraudulent transactions. 

(Emphasis added). Because a scheme is an element of a § 1347 

offense and because the specifically alleged three-and-one-half 

year scheme is made part of each execution, evidence of the 

entire scheme is relevant to proving each particular execution. 

It is important to recognize that just as all the overt 

acts of a conspiracy need not be charged in an indictment, see

United States v. Janati, 374 F.3d 263, 270 (4th Cir. 2004) (“It 

is well established that when seeking to prove a conspiracy, the 
12

government is permitted to present evidence of acts committed in 

furtherance of the conspiracy even though they are not all 

specifically described in the indictment”), all executions of a 

scheme likewise need not be charged, see United States v. Pless, 

79 F.3d 1217, 1220 (D.C. Cir. 1996) (“That the government chose 

to charge as the execution of the scheme only the three deposits 

in National [Bank] does not reduce the boundaries of the scheme, 

which the statute requires the government to prove. . . . [I]t 

is not necessary for the government to charge every single act 

of execution of the scheme in order to prove the whole scheme”). 

Nonetheless, evidence of transactions and conduct not charged is 

relevant to proving the existence of and the boundaries of the 

conspiracy or scheme. See Janati, 374 F.3d at 275 (“[T]he

government has the right and the burden to prove in its case-inchief a conspiracy broader than the individual overt acts 

alleged [and] therefore the district court must give the 

government a reasonable opportunity to carry this burden”); 

Pless, 79 F.3d at 1220 (“[T]he government is [not] artificially 

limited to presenting to the jury only that portion of the 

scheme that directly related to [the charged executions]”). A 

scheme and a conspiracy thus are, for these purposes, similar 

concepts. See United States v. Lothian, 976 F.2d 1257, 1262 

(9th Cir. 1992) (“Because an essential element of these offenses 

is a fraudulent scheme, mail and wire fraud are treated like 
13

conspiracy in several respects”); United States v. Read, 658 

F.2d 1225, 1239 (7th Cir. 1981) (“A scheme to defraud and 

conspiracy embrace analogous, but not identical, concepts”); 

United States v. O’Connor, 580 F.2d 38, 41-42 (2d Cir. 1978) 

(equating “a continuing scheme” with a conspiracy); SEC v. Nat’l 

Bankers Life Ins. Co., 324 F. Supp. 189, 195 (N.D. Tex. 1971) 

(describing “the possibility of reading ‘scheme’ as synonymous 

with a conspiracy” in a federal securities statute). We 

therefore conclude that when the government charges a defendant 

under § 1347 with a scheme to defraud and elects to charge only 

some of the executions of that scheme, its election does not 

limit its proof to only the charged executions. It may 

introduce other evidence of uncharged executions to prove the 

scheme. 

To be sure, a district court still retains broad-ranging 

discretion to manage trials and limit proof that is, for 

instance, overly duplicative. But, as we noted in Janati, its 

discretion must be balanced by the need to give the government 

adequate latitude to prove its case, especially in a large and 

complex healthcare-fraud case where the defendant’s criminal 

intent is placed at issue. See 374 F.3d at 273-74. We conclude 

that, in this case, the district court abused its discretion in 

failing to give the government sufficient latitude to carry its 

burden of proof.
14

In addition, it follows that because evidence of conduct 

not charged in a specific execution may be relevant to the 

nature and scope of a scheme charged under § 1347, such evidence 

is intrinsic to the “scheme” element, and Rule 404(b) therefore 

does not, as Bajoghli argues, regulate it as “other bad acts”

evidence. See Unites States v. Grimmond, 137 F.3d 823, 832 (4th 

Cir. 1998) (“[W]hen ‘other crimes, wrongs, or acts’ evidence is 

relevant to establishing an element of the offense, Rule 404(b) 

is not even implicated”). 

In sum, we conclude that the district court abused its 

discretion in limiting the government’s proof to that which is 

directly relevant to one or more of the 53 executions charged in 

the indictment, without taking into account the relevance of 

uncharged conduct to the alleged overarching scheme. The 

government has the burden of proving a scheme to defraud and 

Bajoghli’s knowing and willful conduct in executing the scheme. 

And to that end, it must be allowed to offer evidence probative 

of these elements, even if that evidence is not directly related 

to one of the 53 executions.

III

The government next challenges the district court’s ruling 

to exclude evidence of the defendant’s post-scheme conduct. It 

seeks to introduce evidence (1) that “after being interviewed by 
15

law enforcement, [Bajoghli] immediately stopped sending 

pathology slides” to outside contractors; (2) that after his 

interview, “the defendant stopped performing Mohs surgery 

without a biopsy”; and (3) that the defendant “delet[ed] 

scheduling data for the past wound repairs that were performed 

by medical assistants.” The district court considered this 

evidence to be “prior ‘bad act’ evidence” governed by 

Rule 404(b) and excluded it on the ground that the government 

had not provided Bajoghli with adequate notice, as required by 

Rule 404(b)(2).∗ Moreover, the court excluded this evidence under 

Rule 403, concluding that its probative value was “substantially 

outweighed by the danger of unfair prejudice . . . , confusing 

the jury . . . , and waste of judicial resources.” The 

government argues that the district court erred in applying 

Rule 404(b) because the evidence is intrinsic to the charged 

crimes; that is, it “bear[s] directly on the defendant’s intent 

as to the charged fraud (not some other crime) and [is] 

 ∗ Even if Rule 404(b) were to apply, it is difficult to 

understand how the government had not provided adequate notice 

to Bajoghli. Bajoghli’s motion to exclude evidence of his postscheme conduct admitted as much, stating, “The government has 

indicated that they plan to introduce evidence of changes in 

procedures and practices in [his] offices after he became aware 

that he was under criminal investigation, presumably to 

demonstrate that the prior practices were illegal.” Moreover, 

in his motion to exclude this evidence, Bajoghli did not raise a 

lack of notice as a ground for exclusion. 
16

inextricably intertwined with how he committed the fraud and his 

efforts to conceal it once he learned [of the] investigation.” 

Bajoghli contends that Rule 404(b) does apply to this 

evidence because, as he argued with respect to the evidence of 

his uncharged conduct, it would not be “tied to any one of the 

53 narrowly defined executions of healthcare fraud” and thus 

would not be “intrinsic” to the charged offenses. More 

particularly, he contends that “evidence of remedial measures,” 

as a matter of law, “cannot be ‘intrinsic’ to any of [the 

charged] offenses” because the remedial measures all occurred 

after the period of time noted in the indictment as encompassing 

the alleged fraudulent scheme. In addition, he contends that 

its admission would be unfairly prejudicial under Rule 403, 

parroting the district court’s conclusion.

Again, we agree with the government. As the government 

points out, it intends to offer evidence of Bajoghli’s postscheme conduct to prove his knowledge and intent to defraud, as 

is required by § 1347. For instance, that Bajoghli stopped 

sending pathology slides to outside contractors after he learned 

he was under investigation, but before federal agents had even 

become aware of this practice -- as the government represents --

would tend to prove Bajoghli’s fraudulent intent and guilty 

knowledge with respect to this aspect of the scheme. Similarly, 

the government notes that Bajoghli “intends to challenge [the 
17

charge of fraudulent Mohs surgeries] by asserting that he 

exercised reasonable medical judgment in performing Mohs 

surgeries and that any errors were the product of innocent . . . 

mistakes.” Thus, it reasons, evidence that Bajoghli stopped his 

practice of performing Mohs surgeries without first reviewing 

biopsies once he learned of the investigation would tend to show 

that he knew the accepted standard of care for diagnosing skin 

cancer and had deliberately chosen to disregard it. And 

finally, as the government notes, evidence that Bajoghli deleted 

scheduling data from his computers -- data that revealed who had 

actually performed wound-repair procedures -- would tend to 

refute his claim that this aspect of the fraud resulted from 

honest billing mistakes. Cf. McLean, 715 F.3d at 139 

(concluding that evidence that the defendant “attempted to shred 

patient files subpoenaed” by the government was probative that 

the defendant knew he “had something to hide”). The proffered 

evidence therefore would be probative to prove knowledge and 

intent, which are elements of the crimes charged in the 

indictment. And because Rule 404(b) does not apply to conduct 

that is intrinsic to the charged crime, the district court erred 

in applying the rule to this evidence. See United States v. 

Basham, 561 F.3d 302, 326 (4th Cir. 2009) (“The Rule 404(b) 

inquiry . . . applies only to evidence of other acts that are 
18

‘extrinsic to the one charged’” (quoting United States v. Chin, 

83 F.3d 83, 87 (4th Cir. 1996))).

Bajoghli nonetheless argues that his post-scheme conduct 

cannot be intrinsic to the charged offenses because it took 

place after the end of the period of activity charged in the 

indictment. But it simply does not follow that conduct that 

takes place after the end of the period of activity charged in 

the indictment is -- as a matter of law -- subject to the 

requirements of Rule 404(b). In fact, our case law demonstrates 

that simply because a defendant’s conduct takes place outside 

the time frame of the activities charged in the indictment does 

not, as Bajoghli argues, automatically render that conduct 

extrinsic to the charged offense and therefore subject to 

Rule 404(b). See United States v. Kennedy, 32 F.3d 876, 885 

(4th Cir. 1994) (“The basic flaw in [the defendant’s] argument 

is that . . . [it] erroneously assumes that all evidence falling 

outside the charged conspiracy period necessarily involves a 

separate, unrelated offense subject to the strictures of 

[Rule 404(b)]. It is well-established, however, that the mere 

fact that the evidence involved activities occurring before the 

charged time frame of the conspiracy does not automatically 

transform that evidence into ‘other crimes’ evidence”). 

Instead, conduct that takes place outside the time frame of the 

charged offense can avoid having to comply with the requirements 
19

of Rule 404(b) where it is, inter alia, “relevant to 

establishing an element of the offense.” Grimmond, 137 F.3d 

at 831-32. And, as we concluded above, Bajoghli’s post-scheme 

conduct is relevant to proving his fraudulent intent and guilty 

knowledge.

The district court’s additional ruling -- that Rule 403 

requires exclusion of the evidence because its probative value 

is substantially outweighed by the danger of unfair prejudice 

and other concerns -- reflects a misunderstanding of what 

constitutes unfair prejudice under Rule 403. Once it is 

recognized that evidence is probative of an element of the crime

charged, “the balance under Rule 403 should be struck in favor 

of admissibility, and evidence should be excluded only 

sparingly.” United States v. Aramony, 88 F.3d 1369, 1378 (4th 

Cir. 1996); see also United States v. Siegel, 536 F.3d 306, 319-

20 (4th Cir. 2008). And in this context, unfair prejudice 

“speaks to the capacity of some concededly relevant evidence to 

lure the factfinder into declaring guilt on a ground different

from proof specific to the offense charged.” Basham, 561 F.3d 

at 327 (emphasis added) (quoting Old Chief v. United States, 

519 U.S. 172, 180 (1997)) (internal quotation marks omitted). 

Neither Bajoghli nor the district court has identified any

ground that would support a finding of guilt different from

proof that is specific to the offense charged.
20

Because the district court misapplied Rule 404(b) and 

Rule 403 in excluding evidence of Bajoghli’s post-scheme 

conduct, it abused its discretion. 

V

Finally, the government challenges the district court’s 

ruling to exclude evidence that, despite receiving between $100 

and $130 per slide from healthcare benefit programs based on his 

claim that he both prepared and analyzed his patients’ pathology 

slides himself, Bajoghli paid outside contractors only $15 per 

slide to perform those tasks. The government contends that 

evidence of financial gain “is critical in a fraud case to 

establish a defendant’s intent to defraud.” It argues that the 

arrangement between Bajoghli and the outside contractors is 

“part and parcel of proving this aspect of the fraud” and that 

“an essential part of this arrangement was the amount that the 

defendant paid them.” According to the government, “[t]he 

substantial disparity between the amount that the defendant 

received, and what he paid” can only “underscore[] [Bajoghli’s] 

motive for this intentional deception.” 

Bajoghli contends that evidence of what he paid the outside 

contractors is irrelevant, and thus he urges us to affirm the 

district court’s ruling to exclude it. According to Bajoghli, 

“this case is about billing and whether or not the billing was 
21

false.” Because “[a]ny amounts paid to outside contractors were 

not part of the alleged misrepresentations in bills submitted to 

insurers,” those amounts, he argues, “were not material to the 

charged offenses of executing healthcare fraud schemes by 

submitting false claims.”

We agree with the government. Because a violation of the 

healthcare fraud statute requires knowing and willful conduct, 

see 18 U.S.C. § 1347(a), the government must establish 

Bajoghli’s intent to defraud. United States v. Godwin, 272 F.3d 

659, 666 (4th Cir. 2001). And evidence of financial gain is 

particularly probative in a fraud case to establish the 

defendant’s intent to defraud. See, e.g., United States v. 

Beverly, 284 F. App’x 36, 40 (4th Cir. 2008) (per curiam); 

accord United States v. Davis, 490 F.3d 541, 549 (6th Cir. 

2007); United States v. Dearing, 504 F.3d 897, 901 (9th Cir. 

2007) (endorsing the Sixth Circuit’s declaration in Davis that 

evidence of profits can serve as indirect proof of one’s intent 

to defraud); United States v. Wheeler, 889 F. Supp. 2d 64, 68 

(D.D.C. 2012) (“In a § 1347 [healthcare-fraud] case, ‘intent [to 

defraud] can be inferred . . . from profits’” (quoting Dearing, 

504 F.3d at 901)).

Moreover, the district court’s ruling allowing the 

government to introduce evidence that the defendant “would have 

been paid less (or not at all) had the claims not been 
22

materially false” simply does not allow the government to 

present its case with sufficient detail and narrative. Cf. Old 

Chief, 519 U.S. at 183 (recognizing “the offering party’s need 

for evidentiary richness and narrative integrity in presenting a 

case”). 

We conclude, accordingly, that the district court abused

its discretion in excluding this evidence.

REVERSED AND REMANDED