### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3098

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

O MEED M EMAR

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15 CR 345

‐ 1

— Harry D. Leinenweber

, Judge

.

____________________

A RGUED M AY 23, 2018

— D ECIDED O CTOBER 17, 2018

____________________

Before W OOD

, Chief Judge

, and B AUER and S CUDDER

, Circuit

Judges

.

W OOD

, Chief Judge

. Anyone who has encountered medical

billing, either from the provider side or the patient side,

would agree that it could kindly be described as complex. But

that does not mean that the rules are impossible to decipher,

or that anything goes. There is a line between honest billing

and fraud, and in the present case, the government charged

Dr. Omeed Memar with crossing it.2 No. 17

‐ 3098

The government focused on eight cases in which Memar

diagnosed patients with a precancerous condition known as

actinic keratosis, which produces distinctive skin lesions. He

treated the patients in question by applying intense pulsed

light (“IPL”) to supposed lesions on their faces and then bill

‐ ing their insurance providers for the procedures. The govern

‐

ment suspected that there were no such lesions, and that in

‐

stead this was a ruse to trick insurance companies into reim

‐ bursing the charges for cosmetic procedures outside the scope

of the policies. A jury agreed with the government. On appeal,

Memar primarily insists that the evidence was insu ffi cient to

support the verdict. We are not persuaded: we see ample evi

‐

dence in this record from which the jury could fi nd that Me

‐

mar’s conduct was fraudulent. We fi nd no reversible error

elsewhere either, and so the convictions must stand.

I

Until recently, Memar was a practicing dermatologist in

Chicago. In 2015, he was indicted on eight counts of health

care fraud, in violation of 18 U.S.C. § 1347, and eight counts

of making false statements a ff ecting a health care ma tt er, in

violation of 18 U.S.C. § 1035(a)(2). These charges relate to Me

‐

mar’s care for the eight patients we described above. After

each session of IPL treatment for the alleged actinic keratosis,

Memar submi tt ed claims to the patients’ insurance compa

‐

nies, using billing code 17004, for the destruction of 15 or

more precancerous lesions. The insurance companies paid,

since the paperwork represented that the treatments were

medically necessary and not cosmetic.

At trial, the government presented two theories of fraud:

it contended that the eight patients named in the indictment

did not actually have actinic keratosis; and it asserted that theNo. 17

‐ 3098 3

use of IPL alone could not destroy the lesions produced by

actinic keratosis. In support of the fi rst theory, the prosecution

presented expert testimony from Dr. Edward Victor Ross,

who explained that actinic keratosis most commonly presents

as red scaly lesions and is uncommon among patients under

40. Dr. Ross also opined that IPL alone, without other sub

‐

stances or devices, was ine ff ective at treating actinic keratosis.

The eight patients, who were mostly in their 20s and 30s,

all took the stand. Many of them stated that Memar never told

them that they had actinic keratosis or a precancerous condi

‐

tion, something they said they would have remembered. They

had not seen scaly spots on their skin. To their knowledge, the

IPL was to address other medical problems or to improve

their skin’s appearance. Another dermatologist, Dr. Neha

Robinson, con fi rmed that two of the patients did not have le

‐

sions when she saw them during the same period as the one

in which they were receiving IPL treatments from Memar.

Memar’s medical assistants also testi fi ed. They reported

that at each IPL visit, they copied into the patients’ charts di

‐

agrams of where each actinic keratosis lesion was located.

They did this without examining the patients’ faces at the time

of the visit. Two of the assistants said that they would write

down that a patient had multiple lesions even if they observed

none. One assistant admi tt ed that she believed she “was do

‐ ing treatments on patients that didn’t have these diagnoses.”

The government additionally o ff ered testimony from a

representative of Blue Cross Blue Shield (BCBS), James

Krupkowski, about a meeting he and others had with Memar.

BCBS suspected that Memar used IPL on a patient for cos

‐

metic reasons, and so Krupkowski confronted him about it.

Memar responded, according to Krupkowski, that the IPL4 No. 17

‐ 3098

was for “prevention,” since the patient “had a proven history

of cancer.” The prosecution introduced records showing that

shortly after this meeting, Memar dramatically reduced the

frequency with which he billed for the destruction of 15 or

more actinic keratosis lesions. Patients testi fi ed that they were

told their IPL treatments would no longer be covered, but

they were not o ff ered any alternative treatments—surprising

if the treatment was for precancerous conditions.

In his defense, Memar called eight other patients with ac

‐

tinic keratosis. These people, some of whom had had biopsies

to con fi rm their disease, were generally older and knew they

had precancerous lesions. They testi fi ed that Memar dis

‐

cussed multiple treatment options with them, and they un

‐

derwent other procedures in addition to IPL. The defense also

called an expert, Dr. David Goldberg. Dr. Goldberg did not

employ IPL alone to treat actinic keratosis in his practice, but

he did say that he used it to treat his wife’s actinic keratosis at

home.

Finally, Memar testi fi ed in his own defense. He stood by

his diagnoses and maintained that the e ffi cacy of unsupple

‐

mented IPL, though investigational, had some support in the

fi eld. On cross

‐ examination, Memar repeatedly denied the

prosecution’s suggestion that he admi tt ed in the meeting with

BCBS that he used IPL for photorejuvenation (a cosmetic pur

‐ pose).

Though Memar and Krupkowski’s testimony was clear

that there had been no such admission, the prosecution falsely

stated three times during its closing argument that Memar

told BCBS that he used IPL for photorejuvenation. Memar’s

a tt orney did not object, but he did not let the comments slide.

In his closing statement, defense counsel quickly turned toNo. 17

‐ 3098 5

this mischaracterization of testimony. He reminded the jury

that neither Krupkowski nor Memar testi fi ed to an admission

about photorejuvenation. A few minutes later, the defense at

‐

torney used the misstatement to a tt ack the government’s

credibility, citing the alleged “confession” to BCBS as proof

that the jury was “not ge tt ing the truth.” But this was not the

end of the ma tt er. In its rebu tt al, the prosecution referred

again to the same nonexistent testimony while listing evi

‐

dence against Memar. The defense did not object.

Ultimately, the jury convicted Memar on all 16 counts. The

court declined Memar’s motion under Federal Rules of Crim

‐

inal Procedure 29 and 33 to enter a judgment of acqui tt al or to

grant a new trial. He was sentenced to a three

‐ year period of

supervised release, during which he must perform commu

‐ nity service and pay fi nes and restitution. On appeal, Memar

repeats his two reasons for a tt acking his convictions: that the

evidence was insu ffi cient to prove all elements of the o ff enses,

and that the prosecution’s improper remarks tainted the ver

‐

dict.

II

Memar fi rst argues that there was insu ffi cient evidence to

prove the three elements required for his convictions: the fal

‐ sity of his representations, the willfulness of his false state

‐

ments, and his intent to defraud. See United States v. Chhibber

,

741 F.3d 852, 858–59 (7th Cir. 2014) (de fi ning a section 1347

o ff ense); United States v. Natale

, 719 F.3d 719, 742 (7th Cir.

2013) (same for section 1035(a)(2)).

In evaluating Memar’s challenge to the su ffi ciency of the

evidence, we ask not whether we would have found Memar

guilty in the fi rst instance. Rather, we consider “only if, after6 No. 17

‐ 3098

viewing the evidence in the light most favorable to the gov

‐

ernment, the record is devoid of evidence from which a ra

‐

tional trier of fact could fi nd guilt beyond a reasonable

doubt.” Chhibber

, 741 F.3d at 858. This deferential inquiry, ar

‐

ticulated by the Supreme Court in Jackson v. Virginia

, 443 U.S.

307 (1979), in the context of collateral review but widely ac

‐ cepted as a general standard, prevents us from reweighing ev

‐

idence or assessing witness credibility. United States v.

Moshiri

, 858 F.3d 1077, 1081–82 (7th Cir. 2017). All we can do

is look at the record as a whole and ask whether the evidence

would permit a reasonable jury to fi nd each element. United

States v. Farmer

, 717 F.3d 559, 563 (7th Cir. 2013). Memar may

not simply re

‐ litigate his defense on direct appeal. Cf. Natale

,

719 F.3d at 743.

Moreover, contrary to Memar’s assertions, there is nothing

wrong with circumstantial evidence of guilt. United States v.

Jones

, 713 F.3d 336, 340 (7th Cir. 2013); United States v. Galati

,

230 F.3d 254, 258 (7th Cir. 2000). While a verdict based on

speculation cannot stand, one premised on reasonable infer

‐

ences is sound. Jones

, 713 F.3d at 340; see also United States v.

Daniel

, 749 F.3d 608, 614 (7th Cir. 2014) (circumstantial evi

‐

dence and inferences from the scheme to defraud can estab

‐

lish speci fi c intent to defraud); United States v. Rucker

, 738 F.3d

878, 884 (7th Cir. 2013) (circumstantial evidence can be used

to establish knowing participation in a scheme to defraud).

A

We look fi rst at the question whether the evidence sup

‐ ported the jury’s fi nding that Memar purposefully misdiag

‐

nosed patients as having actinic keratosis. The government

presented substantial proof to demonstrate the falsity of those

diagnoses. Numerous patients testi fi ed that they had zero—No. 17

‐ 3098 7

let alone over 15—scaly patches on their faces. Dr. Robinson

con fi rmed that two of the patients did not have actinic kera

‐

tosis. One of Memar’s medical assistants admi tt ed that she

wrote in patient charts that actinic keratosis lesions were pre

‐

sent when they in fact were not. Another said that she did not

notice any scaly plaques, either at the initial visit or at the time

of treatment. Many of the patients in question were in their

30s or younger, a population in which actinic keratosis is pos

‐

sible but “abnormal.” Dr. Ross testi fi ed that 95% of the time,

young patients with actinic keratosis have it only on their lips.

In his over 20 years of practice, Dr. Ross has never had a pa

‐

tient in this age range exhibit 15 or more lesions on other parts

of their faces.

Memar insists that the absence of visibly scaly patches

does not rule out the possibility of actinic keratosis, since the

condition can manifest in various ways. There was testimony

that actinic keratosis could take the form of brown spots or

developing lesions underneath the skin. But Memar’s charts

belie this defense. The records describe the patients’ actinic

keratosis as “scaly” plaques, macules, and patches—the clas

‐

sic symptoms. The fact that they could have had atypical or

preclinical actinic keratosis is thus irrelevant.

Viewing this evidence in the light most favorable to the

prosecution, there was more than enough proof for a jury to

conclude that the eight patients did not in fact have actinic

keratosis. See Chhibber

, 741 F.3d at 860 (evidence that the de

‐

fendant documented unreported medical symptoms and di

‐

agnoses supported convictions under sections 1347 and 1035).

The record also contained evidence suggesting that Me

‐

mar lied about the presence of lesions with the intent to de

‐8 No. 17

‐ 3098

fraud the insurance companies. After BCBS confronted Me

‐

mar about his use of IPL in what it suspected was a cosmetic

procedure, he started requiring patients to pay for IPL out

‐ of

‐ pocket. Memar’s preferred inference—that he stopped billing

patients’ insurance for IPL because the insurer would no

longer cover it—may have been possible from the facts, but

the jury was not required to accept it, particularly given Me

‐

mar’s failure to o ff er the a ff ected patients alternative actinic

keratosis treatments.

And why would these patients have expected other treat

‐

ments, when they did not know they had actinic keratosis?

The contrasting care received by the patients named in the in

‐

dictment and those Memar called on his behalf corroborates

the theory that Memar willfully made false diagnoses. The lat

‐

ter group was generally older and familiar with their actinic

keratosis. Indeed, Memar told an FBI agent that he always in

‐

formed patients with actinic keratosis when they had it. Yet

the mostly younger patients named in the indictment were

not informed, either by Memar or anyone in his o ffi ce, that

they had actinic keratosis or a precancerous condition. The

bona fi de actinic keratosis patients discussed their medical op

‐

tions with Memar and received treatments in addition to IPL.

The patients in the indictment did not. Instead, they often

thought they were receiving IPL for cosmetic or other medical

reasons.

Further evidence of Memar’s intent comes from the medi

‐

cal assistants’ testimony. Memar instructed them, they said,

to note in the charts the number and placement of facial le

‐

sions at each IPL treatment. But they were to do so by copying

what was recorded at the initial visit—not by examining the

patient’s face at the time of the later appointment. A juryNo. 17

‐ 3098 9

could infer willfulness from this practice. See Chhibber

, 741

F.3d at 860 (evidence that defendant ordered tests on patients

whom he did not examine and who did not report the rec

‐

orded symptoms supported section 1347 counts); Natale

, 719

F.3d at 743 (record was not “‘devoid’ of evidence on intent”

where jury could infer from defendant’s detailed notes and

other evidence that chart inaccuracies were the result of

“knowing deliberation rather than careless inadvertence”).

On this record, the jury could infer that in order to make

insurance companies pay for something that otherwise fell

outside their policies, Memar performed a cosmetic proce

‐

dure on patients whom he intentionally misdiagnosed. The

evidence against him is neither speculative nor a re fl ection of

a di ff erence in medical opinion. Memar presented his defense

at trial, and “[t]he jury disbelieved that story.” Id

. We will not

disturb its fi ndings. See United States v. Kolbusz

, 837 F.3d 811,

812 (7th Cir. 2016).

B

We could stop here and a ffi rm Memar’s convictions on the

government’s fi rst theory of liability. We think it useful, how

‐

ever, to explain why the evidence also supports the govern

‐

ment’s second theory: that Memar commi tt ed fraud by sub

‐

mi tt ing claims that IPL by itself (that is, unsupplemented by

other measures) destroyed 15 or more lesions, something he

knew it could not do.

IPL, when not used in conjunction with an agent, is not a

standard treatment for actinic keratosis. Nonetheless, Memar

testi fi ed that he sincerely believed in IPL’s potential. In addi

‐

tion, Dr. Goldberg opined that IPL can destroy lesions and

testi fi ed about experiments fi nding IPL somewhat e ff ective.10 No. 17

‐ 3098

Dr. Ross disputed the accuracy of these studies. According to

him, the literature does not support the hypothesis that IPL

alone “works or if it works, it works very poorly and very

temporarily.” The jury was thus presented with con fl icting

evidence. It was entitled to fi nd more credible Dr. Ross’s view

that IPL is inadequate by itself.

We recognize that doctors often use medications and treat

‐

ments in o ff‐ label ways. If they have a good

‐ faith belief in the

potential success of their experimentation, they do not com

‐

mit health

‐ care fraud. Some of the trial testimony could have

been understood as suggesting that Memar’s use of IPL was a

permissible o ff‐ label approach. For example, Memar men

‐

tioned in a 2016 presentation that IPL should be studied fur

‐

ther as a potential treatment for actinic keratosis. The jury

could have thought that the fact that he considered this

method worthy of additional a tt ention implies that he hon

‐ estly believed in its promise.

Other evidence, however, supported the opposite conclu

‐

sion. Cf. Kolbusz

, 837 F.3d at 812. Memar’s o ffi ce performed

IPL treatments without conducting any follow

‐ up examina

‐

tion to determine which patients had any lesions in need of

removal, and where any such lesions were located. The jury

was entitled to fi nd that the sta ff were insincere about their

e ff orts to destroy lesions when they did not bother to ascer

‐

tain where the lesions were. See United States v. Hunt

, 521 F.3d

636, 645 (6th Cir. 2008) (upholding a conviction for health care

fraud where circumstantial evidence revealed that defendant

“caused bills to be submi tt ed

... for patients that he had never

seen and tests that had not been determined to be medically

necessary”). The jury was also entitled to give weight to the

fact that, for patients with biopsy

‐ con fi rmed actinic keratosis,No. 17

‐ 3098 11

Memar’s behavior was quite di ff erent. For the la tt er group, he

made sure to provide other treatments in addition to IPL. In

sum, the evidence supported a jury fi nding that Memar in

‐

tended to defraud the insurance companies by claiming he

was successfully performing a medically necessary proce

‐

dure.

III

Memar’s other argument on appeal is that the prosecu

‐

tion’s mischaracterization of key testimony during closing

statements so infected his trial with unfairness that his con

‐

viction amounts to a violation of due process. See Darden v.

Wainwright

, 477 U.S. 168, 181 (1986). The government con

‐

cedes that its repeated misstatements were inappropriate.

Thus, the only question before us is whether the improper re

‐

marks deprived Memar of a fair trial. United States v. Klemis

,

859 F.3d 436, 442 (7th Cir. 2017).

Our answer to this question turns on fi ve factors: “(1) the

nature and seriousness of the alleged misconduct; (2) whether

the defense invited the prosecutor’s statements; (3) whether

the jury instructions adequately addressed the ma tt er; (4)

whether the defense had an opportunity to respond to the im

‐

proper remarks; and (5) the weight of the evidence against the

defendant.” Id

. Because Memar did not object in the district

court to the prosecutor’s comments, we review this argument

under the familiar plain

‐ error standard. See Pucke tt v. United

States, 556 U.S. 129, 135 (2009). As relevant here, that means

that even if our analysis of the prosecutorial misconduct un

‐

covers error that normally would lead to reversal, Memar can

prevail only if the error is obvious, it a ff ected his substantial

rights, and it seriously a ff ects the “fairness, integrity, or pub

‐

lic reputation of judicial proceedings.” Id.12 No. 17

‐ 3098

Turning fi rst to the analysis of the prosecutorial miscon

‐

duct, we fi nd that the fi rst two criteria favor Memar. “Mis

‐

statement of evidence may be improper prosecutorial con

‐

duct.” United States v. Wolfe

, 701 F.3d 1206, 1214 (7th Cir.

2012). And the prosecutor’s remarks were unforced error. But

the rest of our analysis convinces us that the trial, viewed in

its entirety, was fair.

The district court instructed the jury before and after clos

‐ ing arguments that the lawyers’ statements were not evi

‐

dence. “If what a lawyer said is di ff erent from the evidence as

you remember it,” he told the jury, “the evidence is what

counts.” We have suggested that such general instructions can

sometimes be enough to ensure a trial’s fairness where the

mischaracterization does not lie at the heart of the case. See

Jordan v. Hepp

, 831 F.3d 837, 849 (7th Cir. 2016); United States

v. McMath

, 559 F.3d 657, 668 (7th Cir. 2009). Although the par

‐

ties quibble over whether this “admission” is essential for the

government’s second theory of criminal liability, neither con

‐

siders it essential to the fi rst.

To his credit, Memar’s defense a tt orney took advantage of

his closing argument to combat the prosecution’s misrepre

‐

sentations. See United States v. Bowman

, 353 F.3d 546, 552 (7th

Cir. 2003). He reminded the jury of the actual testimony and

was able to use that testimony to discredit the prosecution.

The fact that the government got in one more jab during re

‐

bu tt al, to which defense counsel did not respond, is insu ffi‐

cient to render the entire trial unfair. See McMath

, 559 F.3d at

668 (trial’s fairness was not a ff ected even though the improper

comment was made during the government’s rebu tt al).

Critically, there was plenty of evidence against Memar

apart from the testimony about what happened at the BCBSNo. 17

‐ 3098 13

meeting. We frown upon the government’s repeated errors,

but we cannot say that they tainted the fairness of the entire

trial.

IV

In the same vein, Memar argues that his trial a tt orney’s

failure to object to the prosecutor’s remarks amounted to in

‐

e ff ective assistance of counsel under Strickland v. Washington

,

466 U.S. 668 (1984).

We have strongly cautioned against raising ine ff ective as

‐

sistance claims on direct appeal. E.g.

, Ramirez v. United States

,

799 F.3d 845, 853 (7th Cir. 2015); United States v. Flores

, 739

F.3d 337, 340–41 (7th Cir. 2014). To prevail on such a claim,

Memar would have to present evidence to overcome the

strong presumption that his a tt orney was engaged in reason

‐

able trial strategy. United States v. Jansen

, 884 F.3d 649, 656 (7th

Cir. 2018); Hicks v. Hepp

, 871 F.3d 513, 525 (7th Cir. 2017). “[A]

decision not to object to clearly objectionable comments in the

prosecution’s closing argument” can be at times “sound trial

strategy.” United States v. Driver

, 798 F.2d 248, 255 (7th Cir.

1986). He has not done so at this time. Without the bene fi t of

an evidentiary hearing or a developed record, we have no

idea why Memar’s counsel decided to wait until his closing to

say something. See Vinyard v. United States

, 804 F.3d 1218, 1227

(7th Cir. 2015) (ine ff ective assistance claims “generally de

‐ pend on information outside the record available on direct ap

‐ peal”).

This does not leave Memar without a remedy. If he fi les a

post

‐ conviction motion under 28 U.S.C. § 2255, he may seek

an opportunity to develop the needed record. The custody re

‐ quirement for such a motion will not be a problem for some14 No. 17

‐ 3098

time, as Memar will remain in custody until his supervised

release ends in 2020. See, e.g.

, Clarke v. United States

, 703 F.3d

1098, 1101 (7th Cir. 2013) (supervised release is a form of cus

‐ tody that renders collateral relief available); Kusay v. United

States

, 62 F.3d 192, 193 (7th Cir. 1995) (same). If we were to

consider the merits of Memar’s Sixth Amendment argument

now, he would be barred from pursuing it in a later proceed

‐ ing. Flores

, 739 F.3d at 341–42. Given that Memar did not stress

this claim at oral argument, we think it best to refrain from

reaching it now. See Vinyard

, 804 F.3d at 1227 (recognizing

that we have allowed the withdrawal of “claims raised on di

‐

rect appeal when oral argument made clear that those claims

would bene fi t from additional factual development”); United

States v. Wallace

, 753 F.3d 671, 676 (7th Cir. 2014) (on direct

appeal dismissing without prejudice the defendant’s Strick

‐

land claims lest they be forfeited).

V

Memar’s trial was far from “devoid” of evidence that he

acted fraudulently. A jury was entitled to fi nd that Memar en

‐ gaged in the charged misconduct. And while the prosecu

‐

tion’s remarks were improper, they did not deprive Memar of

a fair trial. Accordingly, we A FFIRM the judgment of the dis

‐

trict court.