UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4418

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RONALD POULIN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Mark S. Davis, District 

Judge. (2:09-cr-00049-MSD-FBS-1)

Argued: October 27, 2011 Decided: January 18, 2012

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Richard Klugh, LAW OFFICE OF RICHARD C. KLUGH, Miami, 

Florida, for Appellant. Alan Mark Salsbury, OFFICE OF THE 

UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON 

BRIEF: Neil H. MacBride, United States Attorney, Alexandria, 

Virginia, Katherine Lee Martin, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Following a trial in the United States District Court for 

the Eastern District of Virginia, a jury convicted Ronald Poulin

of one count of health care fraud, in violation of 18 U.S.C. 

§ 1347; twenty-six counts of making false statements relating to 

health care matters, in violation of 18 U.S.C. § 1035; and one 

count of altering records to obstruct an investigation, in 

violation of 18 U.S.C. § 1519. The district court sentenced 

Poulin to sixty-three months’ imprisonment and ordered 

forfeiture of $1,326,852.70 in gross proceeds. Poulin appeals 

the conviction, sentence, and forfeiture order. For the reasons 

stated below, we affirm.

I.

A.

Poulin, a board-certified internist, owned and operated a 

solo hematology/oncology practice in which he treated patients 

for blood diseases and cancers. Treatment and billing in 

Poulin’s practice involved multiple steps relevant to the facts 

of the present case. First, Poulin, after meeting with a 

patient, prescribed medications to treat the patient’s 

condition. Nurses administered these drugs, often at subsequent 

visits. The administering nurse then recorded the drug in the 

patient’s file and noted all services provided to the patient 
3

that day on a “charge ticket.” Billers collected the charge 

ticket and inputted this information into a computer system to 

create a “charge summary.” Poulin reviewed the charge summary 

at the end of each day, and the billers entered his changes into 

the system. They then used this information to bill the 

patient’s insurance company. Poulin regularly billed two 

federally funded insurance programs, Medicare and TRICARE, in 

this manner.

The charges at issue in the present appeal arose out of 

Poulin’s alleged overbilling of these programs. At trial, the 

government argued that this overbilling took three forms:

1. Poulin billed for greater amounts of chemotherapy drugs 

than he actually administered to patients. Although the 

administering nurse accurately recorded the amount 

provided on the patient’s charge ticket, Poulin changed 

the quantity on the daily charge summary.

2. Poulin split 40,000-unit vials of Procrit, an anemia 

drug, between patients so that each patient received 

20,000 units. But, at Poulin’s instruction, nurses and 

medical assistants recorded on charge tickets that each 

patient received an entire 40,000-unit vial.

3. Poulin billed office visits in which patients received

chemotherapy drugs and injections under billing code 

99213, signifying a “Level 3” visit, even though Poulin 
4

knew the office visits did not fulfill the necessary

requirements for this code.1 The government specifically

argued that a Level 3 visit requires a personal encounter 

between the patient and physician, but Poulin billed 

under this code for visits where nurses administered 

medications without him seeing or examining the patients. 

Indeed, the government alleged he was not present in the 

office during many of the visits. In billing for these 

visits, the practice applied “Modifier 25,” indicating

that the patient received an additional evaluation or 

management service in addition to the procedure or 

service that was the central purpose of the visit. Here, 

therefore, the modifier indicated a patient received a 

service in addition to the administration of chemotherapy 

or an injection.

 1 The Physician’s Current Procedural Terminology Manual 

(CPT), which instructs physicians on the proper meaning of 

billing codes, describes five levels of office or outpatient 

visits for established patients. These range from Level 1, the 

least complex, to Level 5, the most complex type of visit. A 

patient usually presents with only minimal problems at a Level 1 

visit, and the physician generally spends only five minutes 

performing or supervising the services provided. The CPT 

specifies that a physician need not be present for this type of 

visit. In contrast, a Level 5 visit typically involves forty 

minutes of face-to-face interaction between the physician and 

patient. Level 3 visits usually involve presenting problems of 

low-to-moderate severity and require that the physician spend 

fifteen minutes face-to-face time with the patient or family.
5

The government initiated an investigation after receiving a 

complaint about Poulin’s billing practices. During the course 

of this investigation, agents served administrative subpoenas on 

Poulin’s practice directing Poulin to produce certain patient 

records. After receiving information that Poulin was directing 

employees to make changes to the subpoenaed records, agents

responded by executing a search warrant on the practice.

On April 3, 2009, a grand jury returned an indictment 

charging Poulin with forty-five counts, seventeen of which were 

dismissed before trial. Trial began on the remaining counts on 

November 3, 2009. In light of Poulin’s challenge to numerous 

evidentiary rulings, disputes over whether charged errors 

resulted in prejudice, and Poulin’s contention that there is 

insufficient evidence to support his conviction, we review in 

some detail the evidence that each party presented at trial.

B.

The government introduced voluminous documentary evidence 

and witness testimony during the trial. Nine of Poulin’s former 

employees testified during the government’s case-in-chief. 

Nurses Kelly Shipman and Idella Thomas testified that they 

administered chemotherapy drugs to patients and accurately 

recorded the amounts they administered in patients’ charts and 

charge sheets. Shipman and Thomas also stated that they 
6

performed Procrit injections. With Procrit, they split vials 

between patients but recorded on the charge tickets that they

dispensed an entire vial to each patient. Patients who provided 

their own vials of Procrit, however, received the entire 

quantity. According to Shipman, Thomas told her to do this, and 

Thomas attested that Poulin instructed her to administer and 

bill Procrit in this manner. Shipman also reported that the 

practice had a standing policy to bill office visits in which

patients received injections as Level 3 visits. Thomas likewise 

stated that, although she raised concerns that the practice was 

billing office visits for patients who only received

chemotherapy as though a physician had seen them, Poulin and 

Antoinette Johnson,2 the office manager, dismissed them. 

Finally, Shipman testified that, after Poulin received the

subpoenas for patient records, he informed the staff that he was 

performing an audit of patient files. He directed employees to 

make changes to files, but Shipman refused to do so because of 

“legality” concerns. She subsequently saw Sherry Fann, a 

receptionist, and Johnson working on these files and shredding 

documents.

 2 During the trial, witnesses variously referred to Ms. 

Johnson as “Antoinette” and “Annette.” Because Johnson 

identified herself as “Antoinette” in her testimony, we use this 

name.
7

Three medical assistants—Carrie Applin, Courtney Eure, and 

Sharrah Jackson—testified, largely corroborating Thomas’s and 

Shipman’s testimony. Applin, who worked for the practice for 

four months, recounted that she saw Poulin mark charge tickets 

to indicate he performed an office visit even though he had not 

seen the patient—for instance, indicating he saw a patient who

received treatment prior to his arrival at the office in the 

morning. Eure testified that the office had a standing policy 

that, when Poulin prescribed Procrit, the nurses and assistants 

should inject 20,000 units but bill for 40,000 units and for a 

Level 3 office visit. Eure was also present when the government 

subpoenaed medical records. In response to the subpoena, Poulin 

asked her and other employees to alter subpoenaed files, but she 

refused to follow his instructions because she believed the 

conduct was illegal. Jackson, too, testified that the office 

had a policy of splitting vials of Procrit and that she refused 

Poulin’s request to alter subpoenaed records.

Billers from Poulin’s practice provided testimony regarding 

his billing practices with respect to Procrit, chemotherapy 

drugs, and office visits. Cherise Hairston testified that 

Poulin wrote a note to the billers informing them that “the only 

acceptable number of units for [Procrit] is 40,” meaning 40,000, 

and he directed her to bill under code 99213 for office visits 

that occurred while he was on vacation. Hairston also described 
8

charge summaries on which Poulin increased the quantity of 

chemotherapy drugs to be billed. Similarly, Amy Hague-Brown 

attested that Poulin made changes to drug quantities and office 

visit codes on charge summaries. Regarding coding of office 

visits, Hague-Brown recounted that when she began to work for 

Poulin she billed lab work and chemotherapy visits as Level 1 or

2 visits, but Poulin later instructed her to bill them as Level 

3 or 4 visits.

Poulin’s practice employed Michelle Foltz as a biller for 

approximately one month. Foltz testified that, during that 

time, Poulin regularly increased chemotherapy drug quantities on 

charge summaries. Similarly, where a charge summary indicated a 

patient had received 20,000 units of Procrit, he changed it to 

reflect that the patient had received 40,000 units. Foltz 

became concerned about Poulin’s billing practices after patients 

called to complain because they paid co-pays for office visits 

in which they were not seen by a physician. Foltz reviewed 

patient charts and determined that Poulin was billing for Level 

3 visits at times when he did not see patients, including for 

visits occurring while he was out of the office. When Foltz 

confronted Poulin, he informed her it was his practice to bill 

office visits in this manner, and he told her that she should 

return co-pays to complaining patients but should not correct 

the claim with the insurer. Foltz was so uncomfortable with 
9

this response that she quit the following day and contacted the 

government to report suspected fraud.

Finally, Sherry Fann, who worked as a receptionist in 

Poulin’s practice, testified pursuant to an immunity agreement 

with the government. Fann conceded that after records were 

subpoenaed, she made changes to patient files at Poulin’s

direction. Poulin and office manager Johnson described the 

changes as part of a regular audit, but the practice had not 

undertaken a similar audit during the four-year period Fann was 

employed there. Further, Fann knew that other employees had 

refused to participate in the so-called audit, but she agreed to 

do so because she “needed [her] job.” Most notably, she 

admitted that she copied a nurse’s note drafted by Poulin into

multiple patients’ files, and, following Poulin’s instructions,

she signed the note illegibly.

In addition to the testimony of Poulin’s former employees, 

one former patient, Rita Rahn, testified for the government. 

Rahn kept a calendar of all of her medical appointments, and she 

reported that on days on which Poulin billed for Level 3 office 

visits, her calendar indicated she received only lab work and 

did not have contact with a physician.

Three government agents testified. Agent Paul Hastings, of 

the Department of Defense Criminal Investigative Service, stated 

that he served administrative subpoenas on Poulin’s office on 
10

July 9, 2008, requiring Poulin to produce certain Medicare and 

TRICARE patient records. Hastings further noted that the 

government expected these records to be produced in their 

original condition. After receiving information that Poulin was 

altering the records, Hastings obtained and executed a search 

warrant to seize the records. FBI Agent Christopher Emsley also 

participated in the search of Poulin’s office, and, through his 

testimony, the government introduced documents seized during the 

search. During the investigation, Angela Zoubul, an FBI 

analyst, compared the patient files seized by the government

with Medicare and TRICARE billing data and with Poulin’s travel 

records. In her testimony, Zoubul introduced two charts 

summarizing instances in which the records indicated Poulin

billed for inflated quantities of chemotherapy drugs and for 

Level 3 office visits that occurred while he was traveling.

Finally, the government presented testimony from Sheila 

Stewart and Dan Johnson, representatives of Medicare and 

TRICARE, respectively. Each witness, having reviewed the 

program’s records, introduced summaries of relevant claims 

Poulin submitted to these programs. Of particular note, these 

witnesses stated their understanding of the 99213 billing code. 

After first reading aloud the relevant portions of the CPT, 

Stewart stated that the use of this code indicated that the 
11

patient saw Poulin during the visit. Johnson also opined that 

this code required the presence of a physician.

In addition to witness testimony, the government introduced 

extensive documentary evidence, including patient files, billing 

records, and travel records. Most notably, the government 

presented documents from patient files that had been or were in 

the process of being changed to correlate with services billed. 

Original documents that were found during the search of Poulin’s 

private office, for instance, had been replaced by altered 

documents in patient files. The jury also viewed Poulin’s 

handwritten notes instructing Sherry Fann to make specified 

changes to drug quantities in patient charts. These notes were 

found on Fann’s desk during the search of the practice.

C.

The defense called four witnesses who were employed in 

Poulin’s practice at the time of trial. Sharon Guglielmini, a 

registered nurse, told the jury that, although nurse Kelly

Shipman initially told her to administer 20,000 units of Procrit 

and record 40,000 units, Poulin later provided a written order 

that she should administer 40,000 units to each patient. She 

conceded on cross-examination, however, that Poulin gave this 

order only after the government executed the search warrant on 

the practice.
12

Antoinette Johnson, who served as Poulin’s office manager, 

testified regarding the so-called audit of subpoenaed patient 

files. After taking delivery of the subpoena, Johnson undertook 

a review of the subpoenaed files. She testified that she found 

numerous errors, including many instances of underbilling. She 

asserted that she did not make any changes or add information to 

patient files, however, and only compiled information on errors

in a separate document. When cross-examined, Johnson identified 

Poulin’s handwriting on notes directing that changes be made so 

that the information in patient files corresponded to services 

billed.

Lynnette Riner began working for Poulin as a biller in June 

2008, shortly before the government served the administrative

subpoenas. She testified that, although Poulin occasionally 

made changes to charge summaries, he only downgraded the levels 

of office visits—from Level 3 to Level 1, for instance—and he 

did not change drug quantities. Carol Cross, another biller, 

began working for Poulin in April 2009. Cross corroborated 

Johnson’s testimony that a review of Poulin’s records revealed 

significant underbilling, but she acknowledged on crossexamination that underbilling on some claims would not justify 

overbilling on other claims. Significantly, Cross conceded that 

a Level 3 office visit must include an encounter between the 
13

patient and the physician and only a Level 1 visit does not 

require the presence of a physician.

At the close of evidence, the district court instructed the 

jury on the relevant law. It declined to give several jury 

instructions proposed by the defense. The district court also 

overruled defense objections to statements made during the 

government’s closing arguments. The jury returned guilty 

verdicts on all counts submitted to it.

D.

Following the jury trial, on January 11, 2010, the district 

court held a hearing to determine the amount of forfeiture 

required under 18 U.S.C. § 982(a)(7). At this hearing, Poulin 

requested, for the first time, a jury determination of 

forfeiture. The district court rejected this request as 

untimely and ordered forfeiture of $1,326,852.70, the entire 

amount received through fraudulent bills. At sentencing, the 

district court, over a defense objection, applied an enhancement 

for Poulin’s role as a leader or organizer of criminal activity 

and sentenced Poulin within the resulting Guidelines range to 

sixty-three months’ imprisonment.

Poulin filed a timely appeal, challenging aspects of his 

conviction, his sentence, and the district court’s forfeiture 

order.
14

II.

Poulin first challenges several of the district court’s 

evidentiary rulings, which we review for abuse of discretion,

United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010). We 

will find the district court abused its discretion if its

decision was “guided by erroneous legal principles or rest[ed]

upon a clearly erroneous factual finding.” Id. (quoting Brown 

v. Nucor Corp., 576 F.3d 149, 161 (4th Cir. 2009)) (internal 

quotation marks omitted). If we find an abuse of discretion, 

the defendant will be entitled to a new trial on this ground 

unless the error was harmless. Fed. R. Crim. P. 52(a); United 

States v. Roe, 606 F.3d 180, 185 (4th Cir. 2010). “[T]o find a 

district court’s error harmless, we need only be able to say 

with fair assurance, after pondering all that happened without 

stripping the erroneous action from the whole, that the judgment 

was not substantially swayed by the error.” Johnson, 617 F.3d 

at 292 (quoting United States v. Brooks, 111 F.3d 365, 371 (4th 

Cir. 1997)) (internal quotation marks omitted). Where a paucity 

of evidence otherwise supports the defendant’s conviction, 

erroneously admitted testimony is likely to be important to the 

jury’s verdict. See id. at 296. Conversely, “[o]ften in 

criminal cases where there is a significant amount of evidence 

which inculpates a defendant independent of the erroneous 

testimony, the error is considered harmless.” Id. at 295.
15

A.

Poulin argues on appeal that the district court erred in

allowing the Medicare and TRICARE representatives, Stewart and 

Johnson, and former biller Michelle Foltz to testify as lay 

witnesses regarding the meaning of Medicare billing codes. He 

specifically objects to their testimony that billing code 99213 

(i.e., a Level 3 office visit) requires the presence of a 

physician. In addition, Poulin contends that the government 

improperly elicited the testimony of a lay witness, Agent 

Hastings, regarding the effect of the administrative subpoena on 

Poulin’s right to alter the subpoenaed records.

Under Federal Rule of Evidence 701, a lay witness may 

provide opinion testimony that is “(a) rationally based on the 

perception of the witness, (b) helpful to a clear understanding 

of the witness’ testimony or the determination of a fact in 

issue, and (c) not based on scientific, technical, or other 

specialized knowledge.” Fed. R. Evid. 701. An opinion based on 

“specialized knowledge,” in contrast, may be provided by an 

expert witness only after certain conditions are satisfied. See

Fed. R. Evid. 702. We have recognized that, often, this 

“distinction . . . ‘is a fine one’ and ‘not easy to draw.’” Roe, 

606 F.3d at 185 (quoting United States v. Perkins, 470 F.3d 150, 

155 (4th Cir. 2006)).
16

It is unnecessary in the present appeal to determine on 

which side of this fine line the contested testimony falls 

because, even assuming arguendo it was admitted in error, we can 

identify no harm that resulted. Poulin asserts that Johnson, 

Stewart, and Foltz should not have been permitted to opine that 

a Level 3 office visit requires the presence of a physician. A

defense witness, however, provided identical testimony. Carol 

Cross testified without objection that only a Level 1 office 

visit does not demand interaction between the patient and the 

physician, and she agreed that a Level 3 visit requires an 

encounter between the patient and the physician. Under these 

circumstances, we find that the jurors’ judgment could not have 

been substantially swayed by the testimony of the government 

witnesses.

Even absent Cross’s testimony, the potential for harm from 

the witnesses’ testimony is minimal because the government 

introduced into evidence the relevant CPT provisions, and these 

provisions make clear that Poulin could not properly bill under 

code 99213 for patients who received only chemotherapy drugs or 

injections administered by nurses. To bill for a Level 3 office 

visit, the CPT requires at least two of three components: (a) 

“An expanded problem focused history”; (b) “An expanded problem 

focused examination”; or (c) “Medical decision making of low 

complexity.” A visit of this type, the CPT notes, “typically” 
17

requires that the physician spend “15 minutes face-to-face time 

with the patient and/or family.” Only the description of a 

Level 1 office visit indicates that the presence of a physician 

may not be required. Even allowing the possibility that a Level 

3 visit may occur without a doctor’s presence, a reasonable 

juror could not conclude, based on the plain text of these 

provisions, that an expanded, problem-focused history or 

examination occurred during visits where nurses merely

administered drugs pursuant to instructions Poulin provided as a 

result of prior office visits.

Moreover, in billing for Level 3 visits, Poulin applied 

Modifier 25. This modifier, according to the CPT, signifies 

that “a significant, separately identifiable [evaluation and 

management] service” was provided on the same day as another 

billed procedure or service. By using Modifier 25, Poulin thus

indicated that a distinct service was being provided beyond the 

injection or administration of chemotherapy, for which he also 

billed. No “significant, separately identifiable” service can 

be found, however, where a patient merely receives prescribed 

drugs and never meets with or is examined by the physician. The

application of these provisions in relation to the facts of this 

case is clear. Accordingly, we are satisfied that the testimony 

regarding the meaning of the 99213 code, even if erroneously 

admitted, did not substantially sway the jurors’ judgment.
18

Likewise, we reject Poulin’s assertion that Agent 

Hastings’s testimony caused harm because it implied that a 

physician could not correct errors in patient files after 

receiving a subpoena. The district court instructed the jury

that Poulin could not be convicted for obstructing an 

investigation if he altered records “to accurately reflect” what 

had occurred. Further, even if Agent Hastings’s statement had 

the potential to influence the jury in a close case, we may say 

with fair assurance that this did not occur here because the 

changes Poulin made or directed to be made to patient records—

including falsifying nurses’ notes—are inconsistent with the 

mere correction or clarification of records.

B.

Poulin next contends that witnesses provided improper 

hearsay testimony when they recounted statements made by his 

former employees about refusing to alter patient records. 

Federal Rule of Evidence 801 defines hearsay as a statement that 

is not made while the declarant is testifying at the current 

trial or hearing and that is offered to prove the truth of the 

matter asserted. Fed. R. Evid. 801(c). But it excludes any 

statement “offered against a party” that was made “by the 

party’s agent or servant concerning a matter within the scope of 

the agency or employment” and was “made during the existence of 
19

the relationship.” Fed. R. Evid. 801(d)(2)(D). This exclusion 

applies whenever an employee makes a statement “about a matter 

within the scope of her employment,” even if she is not 

authorized to speak on the matter. United States v. Portsmouth 

Paving Corp., 694 F.2d 312, 321 (4th Cir. 1982).

Poulin does not dispute that the nurses and medical 

assistants who refused to change patient records at his 

direction were his employees at the time they made the out-ofcourt statements. Nevertheless, he argues that the exclusion 

does not apply because an employee does not act within the scope 

of her employment when she refuses to perform a task assigned by 

her employer and labels this task illegal. This misconstrues 

the relevant inquiry. The concern of Rule 801(d)(2)(D) is not 

whether the employee was carrying out the employer’s wishes or 

whether the employee’s statement was authorized. Rather, the 

court must determine whether the subject matter and 

circumstances of the out-of-court statement demonstrate that it 

was about a matter within the scope of the employment. Here, 

the employment duties of the employees who refused to alter 

patient files included maintaining the contents of these files, 

and they made the statements to Poulin and other employees. 

Accordingly, the statements concerned a matter within the scope 

of the employment relationship. See United States v. Lauersen, 

348 F.3d 329, 340 (2d Cir. 2003) (determining that a nurse’s 
20

statement that patient files were destroyed concerned a matter 

within the scope of her employment relationship because nurses 

in the defendant’s office “were responsible for helping maintain 

patient files”).

C.

Poulin also charges that many of these contested statements 

were inadmissible on the ground that they stated legal opinions. 

Generally, a witness may not give “opinion testimony that states 

a legal standard or draws a legal conclusion by applying law to 

the facts.” United States v. McIver, 470 F.3d 550, 562 (4th 

Cir. 2006). This rule is grounded in the principle that only

testimony that will assist the jury is admissible, and testimony 

that provides “no information other than the witness’s view of 

how the verdict should read” is unhelpful to jurors. United 

States v. Offill, No. 10-4490, slip op. at 8 (4th Cir. Dec. 6, 

2011) (quoting Weinstein’s Federal Evidence § 704.04[2][a] (2d 

ed. 2003)) (internal quotation marks omitted). To determine 

whether a witness has stated a legal opinion, a court should 

consider whether the witness has used terms that have a 

specialized meaning in the law or has responded to a question 

that tracks the language of the legal principle at issue. See

United States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002).
21

Poulin asserts that the district court abused its 

discretion by admitting legal-opinion testimony when it 

permitted Poulin’s former employees to testify that they refused 

to alter patient files because they believed doing so was 

illegal. Although a statement that conduct is illegal typically 

represents a legal conclusion, here, the district court 

instructed the jury that it allowed such testimony only so that 

the jurors would “understand why [actors] did or said certain 

things.” This testimony, therefore, did not simply tell the 

jurors what result to reach; instead, it helped them to 

understand the pertinent facts and was relevant to the issue of 

whether Poulin had the requisite intent to obstruct an 

investigation. Furthermore, the district court did not abdicate 

its responsibility to instruct the jury on the relevant legal 

standard, and it properly instructed the jurors on the need to 

find that the defendant intended to impede, obstruct, or 

influence an investigation to convict.3

Finding no reversible error, we reject Poulin’s contention 

that he is entitled to a new trial on the basis of an erroneous 

evidentiary ruling.

 3 As discussed in Part II.A, supra, any error in admitting 

the testimony of Stewart, Johnson, Foltz, or Agent Hastings was 

harmless.
22

III.

Poulin asserts that the prosecutor committed reversible 

misconduct during closing arguments. He challenges two 

statements made during the prosecutor’s rebuttal to defense 

counsel’s closing argument. First, he argues the prosecutor’s

statement to the jury that Sherry Fann’s “immunity agreement is 

your guarantee that she’s telling the truth” constitutes 

improper vouching. Second, the prosecutor repeatedly described 

defense counsel’s arguments during its closing as “red 

herrings,” which Poulin contends impugned the integrity of 

defense counsel.

Whether a statement made in closing arguments has 

unconstitutionally tainted the outcome of the case is a question 

of law, which we review de novo.4

 United States v. Collins, 415 

F.3d 304, 307 (4th Cir. 2005). Improper remarks during the 

government’s closing arguments violate a defendant’s due-process 

rights so as to warrant reversal only if the remarks “so 

prejudiced the defendant’s substantial rights that the defendant 

was denied a fair trial.” United States v. Wilson, 624 F.3d 

640, 656 (4th Cir. 2010). Therefore, to obtain a new trial, 

 4 The government argues that the statement regarding Sherry 

Fann’s truthfulness should be reviewed for plain error because 

defense counsel failed to enter a contemporaneous objection. 

Because we find that the statement did not cause prejudice, it 

does not constitute reversible error under either standard.
23

Poulin must demonstrate both that a statement was improper and 

that it caused prejudice. United States v. Smith, 441 F.3d 254, 

264 (4th Cir. 2006). Four factors are relevant to our 

evaluation of prejudice: “(1) the degree to which the comments 

could have misled the jury; (2) whether the comments were 

isolated or extensive; (3) the strength of proof of guilt absent 

the inappropriate comments; and (4) whether the comments were 

deliberately made to divert the jury’s attention.” Collins, 415 

F.3d at 309 (quoting United States v. Sanchez, 118 F.3d 192, 198 

(4th Cir. 1997)) (internal quotation marks omitted).

As to the first inquiry, the government’s statement that 

Sherry Fann’s immunity agreement “guarantee[d]” her 

truthfulness, at minimum, borders on improper vouching. 

Certainly, it is permissible for the government to argue that a 

witness’s immunity or cooperation agreement provides a strong 

incentive for truthfulness. United States v. Sullivan, 455 F.3d 

248, 259 (4th Cir. 2006). A prosecutor may not implicitly or 

explicitly suggest, however, that the government “can monitor 

and accurately verify the truthfulness of the witness’[s]

testimony.” Collins, 415 F.3d at 308 (quoting United States v. 

Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990)) (internal quotation 

marks omitted). Here, the prosecutor’s statement regarding 

Sherry Fann suggested that the government could perfectly 

enforce the immunity agreement and police against any and all 
24

lies. At best, treating the immunity agreement as a “guarantee” 

of truthfulness, rather than an incentive to provide truthful 

testimony, verges on impropriety.5

Nevertheless, we conclude that the remark resulted in no 

prejudice. It was an isolated comment, so, in light of the 

compelling evidence of Poulin’s guilt, it is highly unlikely the 

remark misled the jury. Further, there is no indication that 

the prosecutor intended to divert the jury’s attention. It

instead appears that the prosecutor was seeking to highlight the 

incentive for truthfulness created by the immunity agreement, 

which is permissible.

The government also must tread carefully to avoid improper 

denigration of defense counsel in using the phrase “red herring” 

during closing arguments. As the Eighth Circuit has noted, the 

use of “red herring” may not be “combined with other statements 

alluding to defense counsel and deceitful trial tactics.” 

United States v. Shan Wei Yu, 484 F.3d 979, 986 (8th Cir. 2007).

 5 The government urges that we should find this statement 

proper because the statement was made during the trial in United 

States v. Huff, 389 F. App’x 299 (4th Cir. 2010) (unpublished), 

and, on appeal, we found the record in that case revealed no 

improper vouching. Huff is of limited value, however, not only 

because it is not binding precedent, but also because our 

opinion does not expressly address the “guarantee” statement. 

Instead, it states without elaboration that our review of the 

prosecutor’s statements revealed no impermissible vouching. Id.

at 302. Accordingly, Huff does not dissuade us from expressing 

our concerns in this case.
25

But the phrase is not improper if the prosecutor uses it only 

“to argue that some of the issues raised by the defense were not 

central to the ultimate finding of guilt.” Id. at 986–87. The 

government here used the term in the latter, permissible sense. 

The prosecutor did not attack “the institutional role of defense 

attorneys.” United States v. Ollivierre, 378 F.3d 412, 421 (4th 

Cir. 2004), vacated on other grounds by 543 U.S. 1112 (2005); 

see also United States v. Vaccaro, 115 F.3d 1211, 1218 (5th Cir. 

1997) (finding that a statement that defense lawyers as a class

seek to “muddle the issues” and “[t]ry[] to make [them] as fuzzy 

as possible” was “clearly improper”). Rather, in referring to 

certain defense arguments as “red herrings,” the prosecutor 

explained why he believed these arguments were peripheral to the 

central factual questions relevant to Poulin’s guilt. 

In sum, we hold that Poulin was not deprived of due process 

by reason of the prosecutor’s remarks.

IV.

Poulin also argues that we must reverse because the 

government failed to disclose evidence in violation of Brady v. 

Maryland, 373 U.S. 83 (1963), and the Jencks Act, 18 U.S.C. 

§ 3500. The district court denied Poulin’s motion for a new 

trial based on a Brady violation. We review this denial under 

an abuse-of-discretion standard. Wilson, 624 F.3d at 660 &
26

n.24. We review the district court’s determination regarding 

whether evidence must be disclosed pursuant to the Jencks Act 

for clear error. United States v. Roseboro, 87 F.3d 642, 645 

(4th Cir. 1996).

A.

Under the rule articulated in Brady, to comply with due 

process, the government must “disclose ‘evidence favorable to an 

accused upon request . . . where the evidence is material either 

to guilt or to punishment.’” United States v. Caro, 597 F.3d 

608, 619 (4th Cir. 2010) (omission in original) (quoting Brady, 

373 U.S. at 87). To establish a Brady violation, a defendant 

must show (1) the government failed, intentionally or 

inadvertently, to disclose evidence in its possession; (2) the 

evidence is favorable, meaning exculpatory or impeaching; and 

(3) prejudice ensued because the evidence was material to the 

defense. Wilson, 624 F.3d at 661. A defendant who “can only 

speculate” as to the existence or content of undisclosed 

evidence fails to satisfy this burden. Caro, 597 F.3d at 619.

The government consistently has represented that it 

complied with its Brady and Jencks Act responsibilities, and the 

district court, in denying Poulin’s motion for judgment of 

acquittal and for a new trial, noted that there was no evidence 

that the government withheld such material. We agree. Having 
27

reviewed the record, we find that Poulin offers no more than 

speculation that the government failed to disclose material, 

exculpatory evidence. The only alleged Brady material that 

Poulin identifies with specificity is the grand jury testimony 

of Sharon Guglielmini, but, because Guglielmini testified for 

the defense, we can identify no prejudice that may have resulted 

from the government’s failure to disclose this material.

B.

The Jencks Act mandates that the government must disclose 

any statement in its possession made by a government witness 

that relates to the subject matter of the witness’s trial 

testimony. 18 U.S.C. § 3500(b); see also Fed. R. Crim. P. 

26.2(a). A “statement” for purposes of the Jencks Act need not 

be “the witness’[s] actual words,” but “it must in some way have 

been adopted or approved by the witness.” Roseboro, 87 F.3d at 

645. A statement relates to the subject matter of trial 

testimony if it “relate[s] generally to the events and 

activities” to which the witness testified. United States v. 

Derrick, 507 F.2d 868, 871 (4th Cir. 1974) (quoting United 

States v. O’Brien, 444 F.2d 1082, 1086 (7th Cir. 1971))

(internal quotation marks omitted).

We find that the district court did not clearly err in 

determining that the government complied with its Jencks Act 
28

obligations. Poulin insists the government failed to disclose 

prior statements by Agent Hastings, but he has presented no 

evidence supporting the existence of such statements, which the 

government denies. The government acknowledges that it did not 

disclose the grand jury testimony of FBI Analyst Zoubul to the 

defense. This testimony constitutes a “statement” under the 

Act, see § 3500(e)(3), and the district court followed the 

proper procedure in conducting an in camera review of this 

testimony before determining that it was not Jencks material 

because it did not relate to the subject matter of Zoubul’s 

trial testimony, see Roseboro, 87 F.3d at 645–46. Based on an 

independent review of the grand jury testimony, we conclude that 

this determination was not clearly erroneous. The district 

court correctly determined that the grand jury testimony related 

exclusively to counts of the indictment about which Zoubul did 

not testify at trial.

We therefore find no merit in Poulin’s contention that he 

is entitled to a new trial based on the government’s failure to 

disclose evidence.

V.

Poulin raises two additional challenges to his conviction, 

both of which require only brief discussion. First, Poulin 

argues the district court erred in denying numerous jury 
29

instructions that he proposed. We review the district court’s 

“decision to give or not to give a jury instruction . . . for an 

abuse of discretion.” United States v. Allen, 491 F.3d 178, 

186–87 (4th Cir. 2007) (quoting United States v. Moye, 454 F.3d 

390, 397–98 (4th Cir. 2006)) (internal quotation marks omitted). 

Legal questions, including whether the district court properly 

instructed the jury on the statutory elements of an offense, we 

review de novo. Id. at 187. We will reverse because of the 

district court’s refusal to provide a requested instruction only 

if (1) the instruction was correct, (2) it addressed an issue 

that was not otherwise substantially covered by the court’s 

instructions, and (3) the “failure to give the requested 

instruction seriously impaired the defendant’s ability to 

conduct his defense.” United States v. Lewis, 53 F.3d 29, 32 

(4th Cir. 1995) (quoting United States v. Camejo, 929 F.2d 610, 

614 (11th Cir. 1991)) (internal quotation marks omitted).

Having reviewed the district court’s instructions, we find

they correctly state the governing law. The district court 

properly instructed the jury on the meaning of “materiality,” 

which is well-established by precedent. See, e.g., Neder v. 

United States, 527 U.S. 1, 16 (1999); Kungys v. United States, 

485 U.S. 759, 770 (1988). Accordingly, it did not abuse its 

discretion in rejecting Poulin’s proposed instruction on this 

issue. The district court also provided correct instructions 
30

regarding the necessary mens rea to support the charged offenses 

and the jury’s responsibility to determine facts and evaluate 

credibility. These rendered superfluous the remaining 

instructions that Poulin sought.

Second, we reject Poulin’s challenge to the sufficiency of 

the evidence supporting his conviction. We review such a 

challenge de novo. United States v. Kelly, 510 F.3d 433, 440 

(4th Cir. 2007). We review the record in the light most 

favorable to the government in determining whether there is 

substantial evidence to support the conviction. United States 

v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011). 

Circumstantial as well as direct evidence is considered, and the 

government is allowed “the benefit of all reasonable inferences 

from the facts proven to those sought to be established.” 

United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). 

The conviction may be reversed only if no “rational trier of 

fact could have found the essential elements of the crime beyond 

a reasonable doubt.” United States v. Tran Trong Cuong, 18 F.3d 

1132, 1140–41 (4th Cir. 1994) (quoting Jackson v. Virginia, 443 

U.S. 307, 319 (1979)) (internal quotation marks omitted). Based 

on our careful review of the record, we conclude for the reasons 

stated in the district court’s well-reasoned opinion denying 

Poulin’s Rule 29 motion that ample evidence—including both 
31

witness testimony and voluminous documentary evidence—supports 

Poulin’s conviction for each count.

VI.

Poulin next challenges his sentence on the ground that the 

district court erred in applying an enhancement for his 

leadership role in criminal activity under U.S.S.G. § 3B1.1(c). 

“A district court’s findings regarding offense enhancement are 

factual in nature and are reviewed only for clear error.” 

United States v. Carter, 300 F.3d 415, 426 (4th Cir. 2002).

The Sentencing Guidelines direct a sentencing court to 

increase a defendant’s offense level by two levels if the

defendant “was an organizer, leader, manager, or supervisor” of 

criminal activity involving “one or more other participants.” 

U.S.S.G. § 3B1.1(c) & cmt. n.2. To be a “participant,” an 

individual “need not have been convicted.” § 3B1.1 cmt. n.1.

Yet the individual must be “criminally responsible” for the 

conduct, id., not an “innocent bystander[] used in the 

furtherance of the illegal activity,” United States v. Harvey,

532 F.3d 326, 338 (4th Cir. 2008).

The district court rejected Poulin’s argument that all

other alleged participants in his crimes were not criminally 

responsible because they lacked the requisite intent. The 

district court instead concluded that the government established 
32

by a preponderance of the evidence Sherry Fann’s criminal 

responsibility for altering records with intent to obstruct an 

investigation. The criminal nature of Fann’s conduct—which 

included fabricating nurse’s notes and forging signatures—was 

plain, and Fann participated in the conduct even after others 

objected that they believed it was illegal. These facts make 

clear that Fann was not a mere “innocent bystander” swept up in 

Poulin’s criminal activity. Accordingly, the district court’s 

conclusion was not clearly erroneous.

VII.

Finally, Poulin presses several arguments in challenging 

the district court’s order imposing forfeiture in the amount of 

$1,326,852.70. Poulin argues he was not afforded an opportunity 

for jury resolution of the forfeiture claim. He also maintains 

that under the forfeiture statute applicable to health care 

offenses, he is entitled to a set-off for the amount he would 

have received had he billed properly for services actually 

rendered, so the district court erred in ordering forfeiture of 

the entire amount he received through fraudulent billing. 

Poulin finally argues that the government failed to establish 

the statutory prerequisites for forfeiture of substitute assets. 

We find each argument to be without merit.
33

In an appeal from criminal forfeiture proceedings, we 

review the district court’s legal conclusions de novo and its 

findings of fact for clear error. United States v. Martin, 662 

F.3d 301, 306 (4th Cir. 2011). We first consider Poulin’s 

argument that he was improperly denied a jury determination of 

the forfeiture claim. Federal Rule of Criminal Procedure 32.2 

governs criminal forfeiture. Under the version of Rule 32.2 in 

place at the time of Poulin’s trial,6 the jury determines matters 

regarding forfeiture only upon a party’s request.7 See Fed. R. 

Crim. P. 32.2(b)(4) (2009). Therefore, a defendant who failed 

to make such a request before the jurors were excused waived his 

right to have the jury resolve these matters. United States v. 

Davis, 177 F. Supp. 2d 470, 483 (E.D. Va. 2001). Poulin did not 

 6 We note that there is no constitutional right to a jury 

determination of forfeiture matters. Libretti v. United States, 

516 U.S. 29, 49 (1995). The relevant inquiry, then, is whether 

the district court complied with the applicable procedural rule.

7 On December 1, 2009—after the completion of the jury trial 

on November 17, 2009, and before the hearing on forfeiture on 

January 11, 2010, at which Poulin first expressly requested a 

jury determination—Rule 32.2 underwent material changes with 

respect to requests for a jury determination of forfeiture. The 

post-December 1 Rule places the burden on the district court to 

determine before the jury begins deliberations whether either 

party requests a jury determination. See Fed. R. Crim. P. 

32.2(b)(5)(A) (2010). A new procedural rule applies to pending 

procedures only if feasible. 28 U.S.C. § 2074(a). It would not 

have been feasible for the district court to comply with the 

later version of Rule 32.2 in this respect because, by the time 

it became effective, the jury had completed deliberations and 

had been excused.
34

request a jury determination of forfeiture at the time of trial. 

After the jury returned its verdict, defense counsel stated that 

the court needed to address “the remainder of the indictment.” 

But, immediately after making this statement, defense counsel

informed the district court that there was “[n]othing more” that 

had to be addressed before the court excused the jury. By not 

requesting a jury determination until a subsequent proceeding, 

long after the jury was excused, Poulin waived this right.

We also conclude that the district court did not err in 

ordering forfeiture of the entire amount Poulin received through 

fraudulent billing without applying a set-off for the amount he 

would have received had he billed properly for services actually 

rendered.8 A court sentencing an individual convicted of a 

health care offense must order the forfeiture of the “gross 

 8 Poulin suggests he did not receive fair notice of 

forfeiture because the government did not disclose its theory of 

forfeiture or the amount it would seek. The indictment included 

a forfeiture allegation, however, as required under both the 

pre- and post-December 1, 2009, versions of Rule 32.2. Fed. R. 

Crim. P. 32.2(a) (2010); Fed. R. Crim. P. 32.2(a) (2009). The 

current version of the rule makes clear that the indictment need 

not specify the amount of forfeiture, while the rule in force 

prior to December 2009 was silent on this issue. In any event, 

the indictment provided that the government intended to seek 

forfeiture of “the gross proceeds” of the alleged health care 

fraud, amounting to “[a] sum of money of at least $850,000.00.” 

This, we conclude, was a sufficient allegation, notifying the 

defendant of the government’s intent to seek forfeiture.
35

proceeds traceable to the commission of the offense.” 18 U.S.C. 

§ 982(a)(7). In interpreting the continuing criminal enterprise 

forfeiture provision in United States v. McHan, 101 F.3d 1027 

(4th Cir. 1996), we explained that the term “proceeds”—as 

opposed to “profits”—refers to “the total amount brought in” 

through the criminal enterprise. Id. at 1041 (quoting Webster’s 

Third New International Dictionary 1807 (1961)). Likewise, in 

§ 982(a)(7), “gross proceeds” is properly interpreted to include 

the total amount of money brought in through the fraudulent

activity, with no costs deducted or set-offs applied. See

United States v. Hui Chen, 350 F. App’x 520, 523–24 (2d Cir. 

2009) (unpublished) (concluding that because the applicable 

statute required the forfeiture of “gross proceeds,” “there is 

no merit to defendant’s argument that she should be permitted to 

subtract the market value of the ‘services’ she provided”). 

Accordingly, the district court did not err in ordering 

forfeiture of the total amount Poulin received through 

fraudulent bills.

Finally, we find no error in the order requiring the 

forfeiture of substitute property because, as the district court 

held, see United States v. Poulin, 690 F. Supp. 2d 415, 431 

(E.D. Va. 2010), the government established that the defendant 

comingled legally and illegally obtained funds.
36

VIII.

For the foregoing reasons, we affirm.

AFFIRMED