UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4298

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HAMADA MAKARITA,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Leonie M. Brinkema,

District Judge. (1:12-cr-00223-LMB-1)

Submitted: October 21, 2013 Decided: June 26, 2014

Before TRAXLER, Chief Judge, and GREGORY and THACKER, Circuit 

Judges.

Affirmed by unpublished per curiam opinion.

Peter D. Greenspun, Jonathan Shapiro, Mikhail N. Lopez, 

GREENSPUN SHAPIRO P.C., Fairfax, Virginia, for Appellant. Dana 

J. Boente, Acting United States Attorney, Danya E. Atiyeh, 

Special Assistant United States Attorney, Mazen Basrawi, Special 

Assistant United States Attorney, Gene Rossi, Assistant United 

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Appellant Hamada Makarita (“Appellant”) was convicted 

after a jury trial of one count of conspiracy to illegally

dispense controlled substances, five counts of illegally 

dispensing controlled substances, one count of health care 

fraud, and one count of aggravated identity theft. He appeals, 

raising three issues: (1) the district court should have granted 

his motion for a new trial based on the Government’s alleged 

Brady v. Maryland, 373 U.S. 83 (1963), violations; (2) the 

evidence presented at trial was insufficient to convict him; and 

(3) cumulative error deprived him of a fair trial. We have 

reviewed the record and find no reversible error. Accordingly, 

we affirm.

I. 

Appellant, a dentist, owned and operated a dental 

practice in Oakton, Virginia, called “Fixasmile,” specializing

in cosmetic dentistry. On May 24, 2012, Appellant was charged

in a 15-count indictment with one count of conspiring to 

dispense controlled substances, in violation of 21 U.S.C. 

§§ 841(a)(1) and 846 (Count 1); 12 counts of dispensing 

controlled substances, in violation of 21 U.S.C. § 841(a)(1) 

(Counts 2-13); one count of health care fraud, in violation of 

18 U.S.C. § 1347 (Count 14); and one count of aggravated 

identity theft, in violation of 18 U.S.C. § 1028A (Count 15). 
3

The indictment charged that from 2007 to 2012, Appellant 

“distributed and dispensed thousands of dosages of scheduled 

medication, including, but not limited to, Dilaudid, Percocet, 

Vicodin, Fentanyl, Valium, Xanax, and other prescription pills, 

to patients, employees, and girlfriends, all without a 

legitimate dental purpose and beyond the bounds of a dental 

practice.” J.A. 33.*

 Further, the indictment charged Appellant

with fraudulently billing the health care insurance provider, 

AETNA, for dental services he provided to his family members by 

billing these services under the name of another dentist. 

Appellant’s jury trial began on November 5, 2012, and 

on November 16, 2012, the jury returned guilty verdicts as to 

Counts 1-3, 10, and 12-15. The jury found Appellant not guilty 

on the remaining seven specific distribution counts. On April 

12, 2013, Appellant was sentenced to 25 months imprisonment. 

A.

At trial, the Government’s witnesses included, Karen 

Derder, Appellant’s former office manager; Janet Williams, 

Appellant’s current office manager; Janet Brumbaugh, Appellant’s 

patient and former girlfriend; and Masooda Azad, Appellant’s 

former dental assistant. The Government also presented expert 

 * Citations to the “J.A.” refer to the Joint Appendix filed 

by the parties in this appeal.
4

testimony for each of the distribution counts from Dr. Lawrence 

Singer. Below is a summary of the evidence presented to support

each count of conviction. 

1. 

Count One

Count 1 charged Appellant with conspiracy to illegally

dispense controlled substances by directing “employees to 

pharmacies to pick up filled prescriptions written in the names 

of employees and patients, and further instruct[ing] the 

employees to illegally distribute the prescription medications 

back to him for his personal use and further distribution.” 

J.A. 35. Karen Derder, Appellant’s former office manager, 

testified that on April 23, 2009, she filled a prescription from 

Appellant for Fentanyl patches and witnessed him apply one of 

the patches to his body at his dental office. Moreover, Ms. 

Derder testified that she printed multiple prescriptions for 

controlled substances from the office computer for Appellant’s

various family members, patients, and friends at the behest of 

Appellant. 

Masooda Azad, Appellant’s former dental assistant, 

testified that on July 26, 2007, Appellant wrote a prescription 

for Valium in her name and instructed her to pick up the 

medication and return it to him so he could distribute it to 

Reem Hammoud, his girlfriend. Ms. Azad also testified that on 
5

January 24, 2008, Appellant wrote a prescription for Vicodin in 

her name and instructed her to pick it up and return it to him 

for his own personal use. According to Ms. Azad, she discovered

for the first time during the investigation of this case from a 

Virginia Prescription Monitoring Program (“PMP”) report shown to 

her by a federal agent that Appellant had written several other 

prescriptions in her name which were filled at various 

pharmacies. Ms. Azad testified when she called Appellant to ask 

why federal agents were inquiring into her prescription history, 

he instructed her to tell the federal agents that he had given 

her some pain medication. Ms. Azad testified this confused her

because the only pain medicine Appellant had given her for her 

own use had been topical medication for a mouth sore.

2.

Counts Two and Three

Counts 2 and 3 charged Appellant with illegally 

distributing or dispensing controlled substances to Janet 

Brumbaugh on November 13, 2007, and January 23, 2008, 

respectively. Ms. Brumbaugh testified that she began seeing 

Appellant for dental services in 2002, and her relationship with 

him became romantic in 2007. According to Ms. Brumbaugh, after 

their relationship turned romantic, she would call Appellant to 

get prescriptions for Vicodin and Valium for recreational use, 

and she would consume these controlled substances as well as 
6

alcohol while on dates with Appellant. It was her understanding

that, in order to obtain the prescriptions, she had to “hang 

out” with Appellant. J.A. 551. Ms. Brumbaugh testified that on 

at least one of these dates she combined the Vicodin with 

alcohol and blacked out. Either the next day or shortly 

thereafter, Appellant sent her photographs that he had taken of 

her while she was incapacitated, which depicted her nude except 

for a jacket and a single boot, lying apparently unconscious on 

his bed. The photograph was admitted into evidence. Ms. 

Brumbaugh further testified that she was suffering from no 

dental pain at the time and did not tell Appellant she was 

suffering from any dental pain; the medications were solely for 

recreational purposes, and Appellant was well aware that she was 

not using the medications for a legitimate medical purpose. 

Dr. Lawrence Singer, the Government’s expert, 

testified that he reviewed Janet Brumbaugh’s patient file and in 

2007, Ms. Brumbaugh had minor dental procedures performed that 

would result in “mild discomfort” at most. J.A. 465. Further,

after reviewing Ms. Brumbaugh’s record from the Virginia PMP,

Dr. Singer testified that between 2007 and 2008 Appellant 

prescribed Ms. Brumbaugh “several hundred pills total” in 

prescriptions that “were maybe a couple dozen,” and Ms. 

Brumbaugh’s patient record was devoid of any clinical notes to 

support this treatment. J.A. 466. Specifically, Dr. Singer 
7

testified that the Vicodin prescriptions Appellant wrote for Ms. 

Brumbaugh on November 13, 2007, and January 23, 2008, were not 

written within the bounds of dental practice for a legitimate 

dental purpose because there were no records, notes, treatment, 

or anything else in the patient’s records to indicate that this 

treatment was required or even that Ms. Brumbaugh had any dental 

services performed by Appellant. 

3.

Count Ten

Count 10 charged Appellant with illegally distributing 

or dispensing a controlled substance to Karen Derder on April 

23, 2009. Ms. Derder testified Appellant wrote a prescription 

for several boxes of Fentanyl patches in her name and asked her 

to fill it for his own personal use. According to Ms. Derder, 

Appellant hand wrote the prescription, and she dropped it off at 

a pharmacy the night of April 22, 2009, and picked it up before 

work the next morning. Ms. Derder testified that upon arriving 

at work the morning of April 23, 2009, she gave the three boxes 

of Fentanyl patches to Appellant and witnessed him apply one to 

his body. Appellant himself corroborated Ms. Derder’s account. 

Appellant testified, “I was hoping this was something I could 

use as a treatment modality to use for any oral pain. That’s 

why I used it on myself. I said, ‘I want to see if it helps my 

back.’” J.A. 1091. 
8

Ms. Derder not only worked for Appellant, but was also 

his patient. The Government’s expert, Dr. Singer, reviewed Ms. 

Derder patient file and record from the Virginia PMP. Dr. 

Singer testified that between 2007 and 2012 Appellant wrote

prescriptions for Ms. Derder for what “[a]ll amounted to a few 

hundred -- several hundred doses of narcotics.” J.A. 471. 

Specifically, Dr. Singer testified that on April 23, 2009, 

Appellant prescribed Ms. Derder Fentanyl patches, which are a 

“slow-release formulation of Fentanyl” in a patch applied to the 

skin. J.A. 473. According to Dr. Singer, this medicine is 

outside the scope of dentistry or oral surgery and “is only 

appropriate for a chronic pain patient who has cancer pain or . 

. . something extremely debilitating and may be chronically 

ill.” J.A. 474. Dr. Singer testified that the April 23, 2009

Fentanyl patch prescription Appellant wrote for Ms. Derder was

not written within the bounds of dental practice for a 

legitimate dental purpose because there were no clinical notes 

in her file that would support this treatment and because 

Fentanyl has no role in dentistry as it “is a chronic pain 

medication of the highest order.” J.A. 475. 
9

4.

Counts Twelve and Thirteen

Counts 12 and 13 charged Appellant with illegally 

distributing or dispensing a controlled substance to Masooda 

Azad on July 26, 2007, and January 24, 2008, respectively. Ms. 

Azad was not only Appellant’s dental assistant, she was also his 

patient. Ms. Azad testified that on two separate occasions, 

Appellant wrote prescriptions for controlled substances in her 

name, and then asked her to go to a pharmacy, pick up the 

medication, and bring it back to him -- once for Reem Hammoud, 

Appellant’s girlfriend, and once for his own use. Ms. Azad 

testified that the first time she complied, and brought a

prescription for Valium back to Appellant. However, she refused 

to fill the second prescription, which was for Vicodin. Janet 

Williams, Appellant’s current office manager, confirmed that the 

January 2008 prescription for Vicodin was written in Appellant’s

handwriting. 

Dr. Singer, the Government’s expert, again testified 

that he reviewed Ms. Azad’s patient file and record from the

Virginia PMP. Dr. Singer testified that there were no clinical 

notes to support Appellant’s prescription of Valium on July 26, 

2007. Dr. Singer emphasized that Ms. Azad was not Appellant’s 

patient until approximately a year after this prescription was 

written. Dr. Singer also testified that there were no records 
10

to support Appellant’s January 24, 2008 prescription of Vicodin 

to Ms. Azad. Dr. Singer opined that these prescriptions were

not written within the bounds of dental practice for a 

legitimate dental purpose “[b]ecause there’s no treatment, 

there’s no records, and this is a scheduled substance that has a 

high potential for abuse, so there’s no treatment or records to 

support this or even that the patient was a patient of record at 

that time.” J.A. 462-63. 

5. 

Counts Fourteen and Fifteen

Counts 14 and 15 charged Appellant with health care 

fraud for billing AETNA, a health care insurance provider, for 

services he provided to his family members and for aggravated 

identity theft, respectively. A representative from AETNA, 

Kathy Richer, testified that AETNA has an administrative 

services contract with World Bank. According to Ms. Richer, 

this means that World Bank pays their own employees’ claims, but 

AETNA administers the contract or coverage policy and pays 

claims according to the plan’s guidelines. In other words, an 

employee’s insurance “claim is submitted by a provider, and 

[AETNA] pay[s] the claim, but it’s actually World Banks’s money 

that’s paying the claim.” J.A. 403. After reviewing the 

medical insurance plan between World Bank and its employees and 

the contract between World Bank and AETNA, Ms. Richer testified 
11

that there is a specific exclusion in the documents “stating 

that services cannot be rendered to any family member or person 

related by blood or marriage” by a provider. J.A. 404; see also

J.A. 1266. 

From 2007 to 2012, World Bank’s AETNA-administered 

heath insurance plan provided dental insurance to Appellant’s 

parents. Karen Derder, Appellant’s former office manager, and 

Janet Williams, Appellant’s current office manager, both 

testified that Appellant was aware of a provision in his 

parent’s health insurance plan that excluded from reimbursement 

procedures performed on a patient by a doctor or dentist who was 

that patient’s family member. The two also testified that in 

order to circumvent this provision, Appellant submitted his 

requests for reimbursement for work done on his parents in the 

name of Dr. Sameh Kassem, a dentist who had previously been 

employed by the practice. Ms. Williams and Ms. Derder both 

testified that when checks arrived from AETNA made out to Dr. 

Kassem, Appellant would forge Dr. Kassem’s signature in order to 

sign the check over to himself, and then deposit the check, 

sometimes in his personal bank account and sometimes in the 

business bank account. Dr. Kassem testified and confirmed that 

the signatures on the checks were not his, that he had not 

authorized Appellant to bill in his name or to sign checks on 

his behalf, and that he had not performed any dental work on 
12

Appellant’s parents. According to Ms. Richer, Appellant 

received approximately $91,000 to which he was not entitled by 

engaging in this particular billing practice. 

B.

After trial, Appellant filed motions for acquittal and 

for a new trial. These motions alleged the Government committed 

a number of Brady v. Maryland, 373 U.S. 83 (1963), discovery 

violations. Specifically, Appellant claimed the Government 

failed to inform him that Karen Derder believed that in exchange 

for her testimony in this case, Special Agent Parker, the 

federal agent investigating this case, would protect her from 

prosecution on unrelated charges for embezzlement in Culpeper 

County, Virginia. Appellant further claimed the Government 

failed to disclose the result of a negative drug test performed 

by Pre-Trial Services on Appellant the day of his arrest. 

Finally, Appellant argued the Government was required to 

subpoena Ms. Derder’s bank records and provide them to him. The 

district court held two post-trial evidentiary hearings before 

ultimately denying Appellant’s motions.

Although the Government did not present any evidence 

in response to Appellant’s latter two arguments, i.e., the 

negative drug test and Ms. Derder’s bank records, it argued to 

the district court that it had neither in its possession and,

therefore, the evidence could not be considered Brady evidence. 
13

The Government argued that the drug test did not fall under the 

purview of Brady because Appellant’s counsel had actual 

knowledge of the negative result from Appellant himself and the 

result of the test was not within the control of the Government. 

The Government also argued that Ms. Derder’s bank records were 

not subject to Brady because they were also not in its control. 

Further, according to the Government, the bank records would 

have been cumulative impeachment material. 

With regard to the Culpeper investigation, Special 

Agent Parker testified at the first post-trial hearing on March 

15, 2013, that he had instructed Ms. Derder to cooperate and be 

truthful with the Culpeper investigators in order to be 

protected under her immunity agreement with the government. On 

cross-examination, Special Agent Parker admitted that Ms. Derder 

likely believed “that truthful equaled no prosecution.” J.A. 

1431. However, Ms. Derder testified that she believed that her 

federal immunity agreement in this case would not affect the 

Culpeper investigation at all “[b]ecause the federal immunity 

only applied to the trial of [Appellant]. It doesn’t apply to 

any context outside of that.” J.A. 1506. Further, Detective 

Maria Rodriguez, a detective for the Culpeper County Sheriff’s 

Office and the detective who investigated the embezzlement 

accusations against Ms. Derder, testified that the federal case 

had no impact on her actions with regard to the investigation. 
14

At the close of the second hearing, the district court 

denied Appellant’s motions. With regard to Appellant’s motion 

for a new trial, the district court stated, 

the ultimate question about whether or not 

to grant a new trial is has there been a 

manifest injustice, has an innocent person 

been wrongly convicted, and you don’t 

lightly set aside a trial unless there are 

some really significant problems such that 

if you look at the entire record, not just 

one little piece here and one little piece 

there in isolation, if you look at the 

entire record, does it suggest that there 

was, in fact, so many defects that the case 

itself has to be retried. 

J.A. 1590. Ultimately, the district court concluded Appellant’s 

alleged Brady violations did not meet this standard. 

[M]ost of the issues that you have taken up 

in my view have to do with credibility and 

at most would have been cumulative of the 

significant amount of evidence that the 

. . . defense was able to present that would 

undermine the credibility of not just Derder 

but of the agent as well. 

And, you know, again, [Appellant’s 

counsel] put on very effective crossexamination of all the [G]overnment’s 

witnesses, and they all had [a] certain 

amount of warts, but overall between the 

documentary evidence that was at the trial 

and the testimony of the witnesses, I think 

there is no basis to grant the motion for a 

new trial. So I’m denying the motion 

. . . .

J.A. 1612. 

The defendant now appeals to this Court.
15

II. 

Appellant first argues the district court erred by 

denying his motion for a new trial based on the Government’s 

alleged Brady v. Maryland, 373 U.S. 83 (1963), violations. Rule 

33 of the Federal Rules of Criminal Procedure provides, such a 

motion may be granted “if the interest of justice so requires.” 

Fed. R. Crim. P. 33(a). “We review the district court’s denial 

of a motion for a new trial under an abuse of discretion 

standard.” United States v. Bartko, 728 F.3d 327, 334 (4th Cir. 

2013). “It is an abuse of discretion for the district court to 

commit a legal error -- such as improperly determining whether 

there was a Brady violation -- and that underlying legal 

determination is reviewed de novo.” Id. at 338. 

Brady held “that the suppression by the prosecution of 

evidence favorable to an accused upon request violates due 

process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the 

prosecution.” 373 U.S. at 87. To succeed on his Brady claim, 

“the burden rest[s] on [Appellant] to show that the undisclosed 

evidence was (1) favorable to him either because it is 

exculpatory, or because it is impeaching; (2) material to the 

defense, i.e., prejudice must have ensued; and (3) that the 

prosecution had materials and failed to disclose them.” Bartko, 

728 F.3d at 338 (internal quotation marks omitted). 
16

Appellant argues the Government violated Brady when it 

(1) failed to provide information about Karen Derder’s 

understanding of her federal immunity agreement; (2) failed to 

produce the result of Appellant’s negative drug test; and (3) 

failed to provide bank records showing Ms. Derder’s health care 

fraud.

A.

Federal Immunity Agreement

According to Appellant, the Government suppressed

favorable, material evidence as to Karen Derder’s understanding 

of her federal immunity agreement. Appellant characterizes Ms. 

Derder as a serial perpetrator of frauds and the Government’s 

key witness against him. Appellant contends that at the time of 

the trial, Ms. Derder was under strong suspicion by state 

authorities in Culpeper, Virginia, for embezzlement from her 

daughter’s basketball team fund. Appellant further asserts this

embezzlement occurred well after Ms. Derder reached her 

cooperation agreement with the Government, which provided her 

immunity from federal prosecution for her drug and fraud crimes. 

According to Appellant, as developed in the post-trial hearings, 

it was made clear to Ms. Derder by Special Agent Parker that as 

long as she cooperated with the Culpeper authorities, she was 

protected from prosecution from the potential charges in 

Culpeper. Appellant argues that this understanding was withheld
17

from him, and he was not permitted to pursue questions relating 

to it on cross examination. 

The Government disputes Appellant’s allegations 

claiming they did not suppress the evidence because it did not 

exist. According to the Government, Ms. Derder had no belief

that she would be protected from prosecution by the Culpeper 

authorities. The Government further argues that even if Ms. 

Derder possessed some undisclosed perceived benefit, it did not 

violate Brady because the evidence was not material as it would 

have been cumulative impeachment of a witness whose credibility 

had already been thoroughly challenged. 

It is well settled law that “[i]mpeachment evidence, 

. . . as well as exculpatory evidence, falls within the Brady

rule. Such evidence is evidence favorable to an accused, so 

that, if disclosed and used effectively, it may make the 

difference between conviction and acquittal.” United States v. 

Bagley, 473 U.S. 667, 676 (1985) (internal quotation marks and 

citations omitted). Additionally, “[w]hen the reliability of a 

given witness may well be determinative of guilt or innocence, 

nondisclosure of evidence affecting credibility falls within 

this general rule.” Giglio v. United States, 405 U.S. 150, 154 

(1972) (internal quotation marks omitted). To succeed on his 

claim, however, Appellant must still show the suppressed, 

favorable evidence is material. See id. Materiality exists
18

under the Brady rule “if there is a reasonable probability that, 

had the evidence been disclosed to the defense, the result of 

the proceeding would have been different.” Bagley, 473 U.S. at 

682. “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. (internal quotation

marks omitted).

Appellant’s argument with respect to Karen Derder’s 

federal immunity agreement fails for two reasons. First, Ms. 

Derder specifically testified at the post-trial hearings that 

she had no belief she would be protected from prosecution in the 

Culpeper matter “[b]ecause the federal immunity only applied to 

the trial of [Appellant].” J.A. 1506. Second, even assuming

Ms. Derder had the requisite belief and the Government 

suppressed it, Appellant’s argument nonetheless fails as to 

materiality. Appellant failed to demonstrate that there is a 

reasonable probability that the outcome of the trial would have 

been different had the defense been able to impeach Ms. Derder 

using this additional material. 

Appellant’s counsel conducted a thorough cross 

examination of Ms. Derder. For example, Appellant’s counsel 

impeached her on the following: 

• She was terminated by Appellant for making a false claim to 

an insurance company in 2010; 
19

• She submitted a false resume to a doctor in Manassas, 

Virginia, in 2010;

• She billed an insurance company fraudulently for work not 

done on a patient and received the money herself for 

personal use; 

• She forged Appellant’s signature on prescriptions;

• She made inconsistent statements to the grand jury;

• She made fraudulent insurance claims on behalf of her 

sister;

• She was convicted of writing false checks in 1991; and

• She allegedly embezzled from Appellant’s 401(k) plan. 

Thus, as the district court pointed out in its ruling, Ms. 

Derder was zealously impeached with a variety of material, and 

this alleged additional area of impeachment, even if it did 

exist, would have simply been cumulative. Therefore,

Appellant’s claim fails because there is not a “reasonable 

probability that, had the evidence been disclosed to the 

defense, the result of the proceeding would have been 

different.” Bagley, 473 U.S. at 682. 

B. 

Drug Test and Bank Records

Next, Appellant argues the Government violated Brady

when it failed produce the result of a negative drug test, 
20

undermining its theme that Appellant abused drugs, and when it 

failed to produce Karen Derder’s bank records. According to 

Appellant, the Pre-Trial Services drug test taken on the day of 

Appellant’s arrest was negative, but the Government failed to 

provide the defense with this exculpatory evidence until the 

close of evidence. The jury was eventually given this 

information in the form of a jury instruction from the court. 

However, the Government had suggested throughout the trial that 

Appellant had Vicodin or hydrocodone in his system when he was 

arrested. Furthermore, Appellant contends the Government should 

have produced Ms. Derder’s bank records. Instead, Appellant was 

forced to subpoena the records himself, which he did not receive 

until the eve of closing argument. 

The Government argues that the drug test was not in 

the possession or control of the Government or any member of the 

trial team, and it did not have the test result in its file. 

Special Agent Parker mistakenly testified (and mistakenly told 

Appellant during his arrest) that the test was performed by the 

United States Marshals. According to the Government, the test 

was actually performed at the courthouse by Pre-Trial Services, 

an arm of the court, and it was not aware of the result; and 

therefore, according to the Government, it had no duty to 

disclose the result. Additionally, the Government argues Ms. 

Derder’s bank records were also not in its possession, and the 
21

Government is not required to affirmatively seek out information 

not already in its possession and deliver it to the defendant. 

Appellant’s claims with regard to the drug test and 

Ms. Derder’s bank records fail for the fundamental reason that 

Appellant failed to demonstrate “that the prosecution had [the] 

materials and failed to disclose them.” Bartko, 728 F.3d at

338. Brady does not require the Government to investigate the 

defense’s theory of the case or create evidence that might be 

helpful to the defense. This fundamental element of Brady

requires Appellant to show that the Government “suppressed” the 

evidence in question, either willfully or inadvertently. See

United States v. King, 628 F.3d 693, 701-02 (4th Cir. 2011). 

Simply, “[s]uppressed evidence is ‘information which had been 

known to the prosecution but unknown to the defense.’” Spicer 

v. Roxbury Corr. Inst., 194 F.3d 547, 557 (4th Cir. 1999) 

(quoting United States v. Agurs, 427 U.S. 97, 103 (1976)). 

Neither the drug test result nor Ms. Derder’s bank records were 

suppressed by the Government as they were not information known 

to the prosecution but unknown to the defense. The Government 

is only obligated to disclose favorable evidence in its 

possession. Therefore, Appellant’s claim here fails. 

Moreover, the district court gave a curative 

instruction to the jury concerning the result of Appellant’s 

drug test. The district court’s instruction informed the jury 
22

of the negative result of Appellant’s drug test and instructed

them to disregard any testimony provided by federal agents that 

made reference to and suggested Appellant had Vicodin or 

hydrocodone in his system when he was arrested. Even if an 

inadvertent Brady violation had occurred, the district court’s 

curative instruction properly cured any potential prejudicial 

effect. There is, therefore, no reasonable probability that a 

different verdict would have been resulted.

III.

Appellant additionally maintains that his convictions 

rest on insufficient evidence. “We review the sufficiency of 

the evidence de novo. A defendant bringing a sufficiency 

challenge must overcome a heavy burden, and reversal for 

insufficiency must be confined to cases where the prosecution’s 

failure is clear.” United States v. McLean, 715 F.3d 129, 137 

(4th Cir. 2013) (internal quotation marks and citations 

omitted). We “affirm the jury verdict when, ‘viewing the 

evidence in the light most favorable to the prosecution, [it] is

supported by ‘substantial evidence,’” United States v. Hager, 

721 F.3d 167, 179 (4th Cir. 2013) (quoting United States v. 

King, 628 F.3d 693, 700 (4th Cir. 2011)). “Substantial evidence 

consists of evidence that a reasonable finder of fact could 

accept as adequate and sufficient to support a conclusion of a 

defendant’s guilt beyond a reasonable doubt.” King, 628 F.3d at 
23

700 (internal quotation marks omitted). “As both the Supreme 

Court and this Court have recognized, appellate reversal on 

grounds of insufficient evidence will be confined to cases where 

the prosecution’s failure is clear.’” Hager, 721 F.3d at 179 

(internal quotation marks and alterations omitted).

A.

Controlled Substances Convictions

Appellant argues there was insufficient evidence to 

support his conviction for conspiracy because the evidence 

failed to demonstrate any agreement to illegally distribute 

controlled substances between him and any other individual. 

Appellant contends that although the conspiracy allegations 

centered on Masooda Azad and Karen Derder, there was never any 

agreement between the alleged members of the conspiracy. To the 

contrary, the Government argues the evidence was sufficient to 

convict Appellant of conspiracy because both Ms. Azad and Ms. 

Derder testified they agreed to pick up prescriptions for 

Appellant. 

To prove a conspiracy, the Government must present 

evidence of an agreement between two or more persons to 

illegally distribute controlled substances. See United States 

v. Burgos, 94 F.3d 849, 860 (4th Cir. 1996) (en banc). “The 

presence of a knowing and voluntary agreement distinguishes 

conspiracy from the completed crime and is therefore an 
24

essential element of the crime of conspiracy.” United States v. 

Hackley, 662 F.3d 671, 679 (4th Cir. 2011). 

Here, viewing the evidence in the light most favorable 

to the prosecution, Appellant’s conviction for conspiracy is 

supported by substantial evidence. Testimony from both Ms.

Derder and Ms. Azad established that Appellant entered into an 

agreement with each of them to pick up prescriptions in their 

own names and deliver them to Appellant, either for him to 

illicitly deliver to others, or for his own personal use. 

Although Appellant’s testimony contradicted the testimony of Ms. 

Derder and Ms. Azad, the jury elected to credit their testimony 

over Appellant’s. We find no reason to overturn this reasonable 

determination by the finder of fact. 

Appellant also claims there was insufficient evidence 

to support his distribution offenses. However, after a careful 

review of the record, we conclude substantial evidence clearly 

supports that Appellant distributed and dispensed a variety of 

controlled substances for recreational purposes and not for a 

legitimate medical and dental purpose. Therefore, Appellant’s 

argument is without merit. 

B. 

Health Care Fraud Conviction

As previously explained, Appellant performed dental 

work for his parents and submitted insurance claims for 
25

reimbursement to their medical insurance plan from World Bank, 

which was administered by AETNA, but he submitted the claims in 

the name of Dr. Kassem rather than in his own name. According 

to the Government, Appellant submitted claims in Dr. Kassem’s 

name because he believed, based on his understanding of the plan 

provisions, that AETNA would not reimburse him unless he 

misrepresented that the work was performed by a non-family 

member. By doing so, Appellant received reimbursement checks to 

which he was not entitled. This formed the basis for 

Appellant’s conviction for health care fraud. 

Appellant challenges this conviction by first arguing 

there was insufficient evidence because the Government failed to 

prove that Appellant was a party to the AETNA contract. 

According to Appellant, because he was not a party to the 

contract, he was not bound by its terms that excluded 

reimbursement for work performed on family members. Without

this foundation, Appellant argues the evidence could not 

establish that he formed the specific intent to defraud AETNA. 

We are not persuaded by this line of argument. 

The health care fraud statute pursuant to which 

Appellant was convicted makes it a crime to “knowingly and 

willfully execute[], or attempt[] to execute, a scheme or 

artifice . . . to defraud a health care benefit program.” 18 

U.S.C. § 1347(a)(1); see also McLean, 715 F.3d at 136. “The 
26

specific intent to defraud may be inferred from the totality of 

the circumstances, and need not be proven by direct evidence.” 

McLean, 715 F.3d at 140. 

After careful review of the record, we conclude there 

was substantial evidence to support Appellant’s conviction for 

health care fraud. As an initial matter, whether Appellant was

a party to the insurance contract or not is not relevant to 

whether he formed the specific intent to commit health care 

fraud. Indeed, the fraud occurred when Appellant submitted a 

claim for reimbursement in the name of Dr. Kassem when in 

reality Appellant himself performed the dental work. Based on 

the plan itself and the testimony of Kathy Richer, it was 

evident that the AETNA/World Bank plan excluded “services 

furnished by persons who are related to insured person in any 

way by blood or marriage.” J.A. 1266. The testimony of both 

Karen Derder and Janet Williams established that Appellant was 

aware of this provision, and to circumvent it, he deliberately 

submitted claim forms for his parents to appear as though the 

work he performed had been performed by Dr. Kassem. 

Additionally, both Ms. Derder and Ms. Williams testified that 

Appellant received checks made out to Dr. Kassem and signed them 

over to himself. The evidence was more than sufficient to show 

that Appellant made the false representations to AETNA knowingly 
27

and willfully, in order to receive money to which he was 

otherwise not entitled.

Appellant further argues the evidence failed to 

demonstrate that AETNA was a health care benefit program. We 

disagree. 

A “health care benefit program” is defined by the 

statute as “any public or private plan or contract, affecting 

commerce, under which any medical benefit, item, or service is 

provided to any individual.” 18 U.S.C. § 24(b). After a review 

of the record, we conclude, there was substantial evidence to

establish AETNA was a health care benefit plan under the 

statute. The evidence showed AETNA was the agent of World Bank 

for purposes of administering its health care plan, which was a 

public or private plan or contract, affecting commerce, under 

which any medical benefit, item, or service was provided to 

individuals. Substantial evidence demonstrated that the 

AETNA/World Bank plan provided health insurance coverage to the 

plan participants, that AETNA administered that plan, acting as 

World Bank’s agent, and that AETNA received the fraudulent 

insurance claims submitted by Appellant. Therefore, we conclude

that, viewing the evidence in the light most favorable to the 

prosecution, Appellant’s conviction for health care fraud is 

supported by substantial evidence. 
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C.

After careful review of the record, we further 

conclude Appellant’s claim of cumulative error based on the 

district court’s admission of a semi-explicit photograph and on

the district court’s limitation on the amount of cumulative 

patient witnesses Appellant could call is without merit. 

IV.

For the foregoing reasons, the judgment of the 

district court is affirmed. We dispense with oral argument 

because the facts and legal contentions are adequately presented 

in the materials before this court and argument would not aid 

the decisional process.

AFFIRMED