                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No.  15-4032


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

W. WAYNE PERRY, JR., 

                Defendant - Appellant. 



                            No.  15-4050


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANGELA PERRY,

                Defendant - Appellant. 



Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk.  Mark S. Davis, District Judge. 
(2:13-cr-00156-MSD-DEM-1; 2:13-cr-00156-MSD-DEM-2)


Argued:   March 24, 2016                  Decided:   August 9, 2016


Before AGEE and WYNN, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation. 
Affirmed by unpublished per curiam opinion. 


ARGUED: Joseph Ray Pope, WILLIAMS MULLEN, Richmond, Virginia;
Andrew Michael Sacks, SACKS & SACKS, Norfolk, Virginia, for
Appellants.    Alan Mark Salsbury, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.      ON BRIEF: John S.
Davis, WILLIAMS MULLEN, Richmond, Virginia, for Appellant W. Wayne
Perry, Jr. Dana J. Boente, United States Attorney, Alexandria,
Virginia, Melissa E. O’Boyle, 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Unpublished opinions are not binding precedent in this circuit. 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:

     W.    Wayne    Perry,     Jr.,   and      his   wife,   Angela    Perry,   were

convicted of conspiracy to commit healthcare fraud in violation 18

U.S.C. § 1349 (Count 1), healthcare fraud in violation of 18 U.S.C.

§ 1347 (Counts 2-5), making false statements in connection with a

health care benefit program in violation of 18 U.S.C. § 1035

(Counts 6-13), alteration of records in violation of 18 U.S.C.

§ 1519 (Count 14), and aggravated identity theft in violation of

18 U.S.C. § 1028A(a)(1) (Counts 15-18).                 These charges arose from

a scheme to overbill Virginia’s Medicaid program through Mr.

Perry’s home healthcare company, Community Personal Care, Inc.

(“CPC”).     On appeal, the Perrys raise various challenges to the

sufficiency    of        the   evidence        presented     against    them,     the

government’s       use   of    certain    Medicaid     regulations      related   to

“respite care” services, and the district court’s instructions to

the jury on the meaning of the term “willfully.”                       After careful

review, we reject each challenge and affirm the convictions. 

                                          I.

     The principal evidence at trial, viewed in the light most

favorable to the government, as it must be at this stage, see

United States v. Perkins, 470 F.3d 150, 160 (4th Cir.  2006), is as

follows:

     The    Virginia       Department     of     Medical     Assistance    Services

(“DMAS”) administers Medicaid programs for low income individuals

                                          3
in Virginia.       One such program, the Virginia Medical Assistance

Program (“VMAP”), authorizes certain companies to provide in-home

healthcare   services.         VMAP   reimburses   these    companies   for

providing basic assistance to patients in their own homes, with

the   goal   of    avoiding    unnecessary   expenses     and   discomfort

associated with institutionalized care. 

      VMAP authorizes two types of in-home care, known as “personal

care” and “respite care” services.        Personal care services assist

the patient with the activities of daily living, such as bathing

and dressing.       Registered nurses prescribe an approved plan of

care that details the activities with which the patient needs

assistance and establishes the maximum number of hours per week

that providers may bill for providing these services.            Invoices to

DMAS, however, must be based on the actual amount of time that

aides spend providing these services, rather than the maximum

number of hours authorized by the plan of care.            In addition to

personal care services, DMAS also authorizes respite care services

for patients with an unpaid primary caregiver, often a family

member of the patient.         Respite care refers to services provided

on an episodic or periodic basis to fill in for the designated

primary caregiver when he or she is sick, absent, or otherwise

needs a break from the responsibilities of caring for the patient. 




                                     4
See 12 Va. Admin Code. §  30-120-766(A)(2) (2008).  1 DMAS authorized

up to 720 respite care hours annually for each patient’s primary

caregiver prior to July 1, 2011, and 480 hours annually thereafter. 

     Mr. Perry founded CPC in 1998 and served as its president and

CEO, while Mrs. Perry served as his executive assistant and oversaw

various staffers.    Over a period of several years, CPC employees

engaged in a widespread practice known as “billing by the plan of

care,” that is, billing DMAS for the maximum number of personal

care hours authorized by a patient’s plan of care, rather than by

the number of hours documented on the health aides’ timesheets, as

required by DMAS regulations.     See, e.g., J.A. 260, 328–29.    At

least one CPC employee raised concerns about this practice with

Mr. Perry after taking a Medicaid billing and coding course from

a nearby college.    Mr. Perry allowed the employee to bill from the

aide records for one week, but instructed her to go back to billing

by the plan of care after learning that billing by the aide records

resulted in significantly lower billing.    When the employee spoke

with Mrs. Perry about the practice, Mrs. Perry responded, “That is

what Wayne wants us to do, so that’s what we do.”      J.A. 194–95. 

CPC employees also routinely billed for respite care services that

no CPC employee actually provided. 



     1 The conspiracy in this case existed from 2009 to 2013.  For
purposes of these definitions, the pertinent Virginia regulations
did not change materially between 2008 and 2013. 

                                 5
      CPC employees also engaged in an extensive effort to conceal

the fraudulent billing scheme.           Beginning in 2010, Mr. Perry

engaged Allison Hunter-Evans, a former DMAS employee, to identify

problems with CPC’s records and documentation.         When Hunter-Evans

raised concerns with Mrs. Perry about billing by the plan of care,

Mrs. Perry shook her head and responded, “It will be the death of

him,” referring to her husband.       J.A. 1193-94.     Yet no corrective

action was taken.        Instead, CPC employees doctored records in

response to the deficiencies identified by Hunter-Evans.  Mr. Perry

also paid Hunter-Evans to have lunch with a former colleague at

DMAS in order to glean non-public information about an upcoming

audit of CPC.      When Hunter-Evans reported the specific time period

that was likely to be the subject of the audit, Mr. Perry responded

via email, “Now that’s what i am talki= ng about!!!!         I WILL START

SAVING MY $$$$$.I will be ready!”        J.A. 3542; see also J.A. 1171. 

CPC   employees    spent   the   weekend   before   the   audit   forging

signatures, adding hours to timesheets, and otherwise doctoring

records.    Although Mr. and Mrs. Perry were both present in the

office that weekend, Mrs. Perry primarily directed the effort to

conceal the fraud, even assigning a specific employee to forge

signatures because she was the “artistic one.”         J.A. 273–76. 

      In February 2014, a grand jury indicted the Perrys on eighteen

counts of healthcare fraud, conspiracy to commit healthcare fraud,

making false statements relating to health care, alteration of

                                    6
records, and aggravated identity theft.  The conspiracy was alleged

to have existed from January 2009 through January 2013, with the

substantive counts occurring at various times throughout that

period.    Hunter-Evans, who was also indicted in this case, pleaded

guilty to alteration of records (Count 14) and testified against

the Perrys at trial.     More than a dozen former CPC employees also

testified against the Perrys, several under grants of immunity

from the government.     The jury convicted the Perrys on all counts. 

This appeal followed. 

                                 II. 

     The Perrys first challenge the sufficiency of the evidence

against them on Counts 2-13 and 15-18.       Counts 2-5 charged the

Perrys with health care fraud in violation of 18 U.S.C. § 1347. 

In order to establish these counts, the government was required to

prove that the Perrys knowingly and willfully executed a scheme to

defraud DMAS.     See United States v. McLean, 715 F.3d 129, 137–38

(4th Cir.  2013).    Counts 6-13 charged the Perrys with making false

statements relating to health care matters in violation of 18

U.S.C. § 1035.    In order to establish these counts, the government

was required to prove that (1) the Perrys made a materially false

statement; (2) in connection with the delivery of or payment for

health care benefits; (3) in a matter involving a health care

benefit program, as that term is defined in 18 U.S.C. § 24(b); and

(4) the Perrys acted knowingly and willfully.      See United States

                                  7
v. Natale, 719 F.3d 719, 742 (7th Cir.  2013).                 Finally, Counts 15-

18 charged the Perrys with aggravated identity theft in violation

of 18 U.S.C. § 1028A(a)(1).          In order to establish these counts,

the government was required to prove that the Perrys (1) knowingly

transferred, possessed, or used; (2) without lawful authority; (3)

a means of identification of another person; (4) during and in

relation    to     a   predicate   felony      offense.          United    States    v.

Abdelshafi, 592 F.3d 602, 607 (4th Cir.  2010).                   Health care fraud

qualifies     as   a   predicate   felony      offense    for    the     purposes   of

§ 1028A.    Id.

     “A jury’s verdict must be upheld on appeal if there is

substantial evidence in the record to support it.”                      United States

v. Foster, 507 F.3d 233, 244 (4th Cir.  2007).                 The court must view

the evidence in the light most favorable to the government and

assume that the jury resolved all contradicting evidence in the

government’s favor.         Id. at 245.         “[T]he uncorroborated testimony

of one witness or of an accomplice may be sufficient to sustain a

conviction.”        United States v. Wilson, 115 F.3d 1185, 1190 (4th

Cir.  1997).         In addition, “the existence of a conspiratorial

agreement need not be proven by direct evidence, but may be

inferred from the facts and circumstances of the case.”                         United

States   v.      Laughman,   618   F.2d       1067,   1074   (4th       Cir.    1980). 

Ultimately, in reviewing for substantial evidence, “[t]he relevant

question is whether, after viewing the evidence in the light most

                                          8
favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt.”    Jackson v. Virginia, 443 U.S. 307, 319 (1979). 

     The Perrys do not dispute that, from at least 2009 through

2013, CPC employees submitted fraudulent invoices to DMAS, used

patient identification numbers without permission, and altered

timesheets and other records in an attempt to conceal their fraud

from auditors.  At trial, they claimed that CPC employees conceived

and executed this scheme without their knowledge or participation. 

On appeal, however, the Perrys do not argue that the evidence

against them was insufficient to support their convictions for

conspiracy   to   commit   healthcare     fraud   and   altering   records.  2

Nevertheless, the Perrys both argue that insufficient evidence

exists to convict them of the substantive counts relating to

respite care fraud, and Mrs. Perry contends that the evidence was

insufficient to convict her of the substantive counts relating to

personal care fraud.  3     We disagree. 



     2 Although the Perrys have not expressly challenged the
sufficiency of the evidence supporting their convictions for
conspiracy to commit healthcare fraud (Count 1), we note that the
evidence discussed below makes plain that there is sufficient
record support for their conspiracy convictions. 
     3 The Perrys also challenge the sufficiency of the evidence
supporting their convictions for aggravated identity theft.  The
identity theft counts in the indictment involved the use of
Medicaid identification numbers on fraudulent personal and respite
care invoices.     The Perrys have not raised any sufficiency


                                    9
     Ample evidence was presented at trial to support the jury’s

conclusion that Mr. Perry participated in the respite care fraud

scheme.    Former CPC employees testified that when CPC’s revenues

were down, Mr. Perry imposed quotas for respite care hours and

threatened to fire staffing coordinators who failed to meet these

quotas.    Several employees testified that Mr. Perry would often

instruct them to “run the respite” or “burn up the respite,” see,

e.g., J.A. 266–67, 544, 2282, and that they understood these

instructions as directions to submit invoices for respite hours

that were not worked or to provide respite services that were not

requested by the patient or primary caregiver.  There was extensive

evidence of multiple employees falsifying respite records to bill

DMAS for scores of respite hours that were never worked.    And there

was evidence that Mr. Perry’s demands were sometimes communicated

late in a billing cycle or toward the end of a fiscal year such

that he would have known it was unlikely – if not impossible – for



arguments specific to the aggravated identity theft counts.  As a
result, this Court will treat the sufficiency of the evidence
supporting the aggravated identity theft counts as rising and
falling with the personal and respite care fraud counts. 

     The Perrys also argue that the aggravated identity theft
statute, 18 U.S.C. § 1028A(a)(1), does not reach the type of
conduct charged in this case.     This Court has already rejected
this argument.  See Abdelshafi, 592 F.3d at 606–10.  The Perrys
raise the issue solely to preserve it for further review because,
as they acknowledge, this panel cannot overrule a published
decision of a prior panel.  Jones v. Angelone, 94 F.3d 900, 905
(4th Cir.  1996). 

                                10
staffing coordinators to meet his quotas without billing for hours

that no CPC employee actually worked. 

      There was also evidence of a financial incentive for the

scheme.      In 2010, for example, CPC billed approximately $90,000

per month for respite care services over the first six months of

the year, but approximately $150,000 per month over the last six

months of the year.      Mr. Perry told employees that he used respite

“to   pay   the   bills,”   and   even    when    he   wasn’t    demanding   that

employees meet specific respite quotas, he authorized aides to

bill for unrealistic numbers of respite care hours – up to 250

hours per two-week cycle – in order to achieve this goal.                     J.A.

688–89.      According to one employee involved in the scheme, Mr.

Perry “knew what was going on.”                J.A. 735.     That conclusion was

supported by evidence that CPC paid employees who engaged in the

fraudulent respite billing scheme with separate bonus checks that

required Mr. Perry’s approval, some of which more than doubled the

employees’    normal   compensation       checks.          In   one   instance,   an

employee was paid by separate bonus check in an amount that

exceeded twenty-four hours per day for a two-week period. 

      Mr. Perry conceded that he directed employees to “run the

respite” but points to testimony that no one ever heard him direct

the falsification of respite timesheets.                He contended that his

urging of employees to encourage patients and caregivers to use

respite care was legal and that he was unaware of the fraud.                      To

                                         11
be sure, some CPC employees testified that “some” respite burning

was “on [their] own” in order to benefit themselves personally. 

E.g., J.A. 578, 584, 647.        As the district court noted, however,

a large portion of this case came down to credibility.            A rational

trier of fact could find the government’s witnesses to be credible,

particularly in light of the large financial benefit Mr. Perry

reaped as a result of the respite care fraud scheme which extended

for almost three years, as well as the substantial evidence showing

that Mr. Perry also orchestrated CPC’s personal care fraud scheme. 

     We reach the same conclusion as to Mrs. Perry, who was Mr.

Perry’s executive assistant and considered by employees to be a

“boss” like Mr. Perry.       J.A. 538.      There was evidence that she was

involved with and approved of the widespread and ongoing misconduct

at CPC.     With regard to personal care specifically, at least one

witness testified that Mrs. Perry knew about CPC’s practice of

billing by the plan of care rather than by the actual hours worked

and that Mrs. Perry advised, “[T]hat is what Wayne wants to do, so

that’s what we do.”          J.A. 194–95.        Mrs. Perry also actively

directed employees to falsify aide records and was “in charge”

during    the   weekend   meetings   to   prepare   for   the   audit,   when

employees were directed to fabricate aide record entries to match

the plan of care hours that had been billed to conceal CPC’s fraud. 

J.A. 273-76. 



                                     12
     With regard to respite care, Mrs. Perry conveyed Mr. Perry’s

quotas to the employees responsible for carrying out the fraud and

threatened to fire a personal care aide for failing to meet her

quota.    When one employee expressed concern that the nurses might

discover the respite fraud scheme, Mrs. Perry said that she would

“handle the nurses.”     J.A. 205.       Finally, Mrs. Perry shared Mr.

Perry’s motive for participating in the scheme because she depended

on him to “provide” for her and her children.        See J.A. 2470–71. 

As with Mr. Perry, a rational trier of fact could find the evidence

discussed above to be credible. 

     Finally, the Perrys challenge the sufficiency of the evidence

supporting Count 9 of the indictment, which charged them with

violating 18 U.S.C. § 1035 for overbilling DMAS for personal care

services for a specific patient, E.J., during the week of January

3-9, 2011.     In contrast with their other sufficiency arguments,

the Perrys do not claim that Count 9 involved a fraud committed by

CPC employees without their knowledge.      Instead, they contend that

the government failed to prove that the invoice was fraudulent at

all – that is, that CPC employees did not work the hours billed to

DMAS in connection with Count 9. 

     The Perrys claim that their convictions on Count 9 were based

solely on the absence from E.J.’s file of a timesheet documenting

the number of hours worked by a CPC aide during the week in

question.     In addition, they point to testimony from E.J.’s nurse

                                  13
and daughter that E.J. was not self-sufficient and could not go an

entire week without care.  In light of this circumstantial evidence

that E.J. could have received her normal, approved amount of care,

they argue, no reasonable jury could have convicted on this count

“merely from the circumstance of a missing [timesheet] form.” 

Opening Br.  at 34. 

     Contrary to the Perrys’ assertions, however, the government

presented more than just a missing timesheet to support Count 9. 

The government offered the testimony of Mary McKay, the CPC home

health aide assigned to E.J., who testified that she filled out

and submitted timesheets when she provided services for E.J.   The

government also offered the testimony of CPC nurse Deedra Davis-

Hussein, who testified that E.J. was mentally ill, sometimes

refused care when she did not want to be disturbed, and was capable

of refusing care for a week.    Indeed, the evidence showed that CPC

sometimes went days or even a full week without providing any care

to E.J.   For example, CPC did not bill DMAS for any personal care

hours for E.J. for the week of October 18-25, 2010.    Viewed in the

light most favorable to the government, a reasonable juror could

credit this evidence and conclude that the reason no timesheet

existed for the week of January 3-9, 2011, was because CPC did not

provide any personal care services to E.J. that week.      Although

the Perrys speculate that the timesheet could have been misplaced



                                 14
or destroyed, 4 these possibilities do not undermine the evidence

supporting the jury’s verdict.         As the district court noted, the

government was not required to provide direct evidence that CPC

employees did not work the hours in question, or to rule out every

innocent    explanation   for   the        missing   timesheet.    Instead,

“circumstantial evidence is treated no differently than direct

evidence, and may be sufficient to support a guilty verdict even

though it does not exclude every reasonable hypothesis consistent

with innocence.”     United States v. Jackson, 863 F.2d 1168, 1173

(4th Cir.  1989).     The Perrys’ challenge to Count 9 is therefore

rejected. 

                                  III. 

     The Perrys also raise several challenges to their convictions

on the counts involving respite care fraud.              Counts 1, 2-5, and

10–13 involved CPC’s billing for, among other things, respite care



     4 At trial, FBI Special Agent Kim Wright testified regarding,
among other things, her review of CPC’s records.  Wright presented,
without objection, a summary chart for services performed for E.J.
See Fed.  R. Evid.  1006.  The chart indicated that for the week in
question Ms. McKay’s aide records reflected five hours worked for
E.J. but that CPC billed forty-two hours.  On appeal, the Perrys
state that Wright’s chart was wrong because “[i]n fact, [E.J.’s]
patient file contained no timesheet for the week of January 3-9,
2011; that timesheet was missing completely, and no personal care
hours were documented for the week.”  Reply Br.  at 15.  Even if,
as the Perrys argue, the jurors were “misled by the summary chart
about the personal care hours actually recorded for the week
involved in Count 9,” this would not help the Perrys insofar as
neither scenario (five documented hours or zero documented hours)
supports the hours billed. 

                                      15
services.      At trial, the government argued that the relevant

respite care bills amounted to fraud because the company billed

for respite care hours that no employee worked or, alternatively,

for hours that employees worked on their own initiative without

providing any benefit to the patient’s primary caregiver. 

     The    Perrys    first   argue     that   their     convictions    must   be

overturned    because     the    government       offered    false     testimony

regarding DMAS respite care regulations.                “The Supreme Court long

ago opined that, ‘a State may not knowingly use false evidence,

including    false    testimony,   to    obtain    a    tainted   conviction.’” 

United States v. Bartko, 728 F.3d 327, 335 (4th Cir.  2013) (quoting

Napue v. Illinois, 360 U.S. 264, 269 (1959)).                      “This is true

regardless of whether the Government solicited testimony it knew

or should have known to be false or simply allowed such testimony

to pass uncorrected.”          United States v. Kelly, 35 F.3d 929, 933

(4th Cir.  1994).        When the government offers false evidence that

it knows or should know is false, a conviction based on that

evidence “must be reversed when ‘there is any reasonable likelihood

that the false testimony could have affected the judgment of the

jury.’”      Id. (quoting United States v. Agurs, 427 U.S. 97, 103

(1976)). 

     Before 2007, primary caregivers were required to live in the

home with their Medicaid patients in order to qualify for respite

care services.        12 Va. Admin.  Code § 30-120-768(B) (2006).             DMAS

                                        16
removed this live-in requirement in 2007, before the conduct

charged in the indictment.         See 12 Va. Admin.  Code § 30-120-

766(B)(2) (2007).    However, the live-in requirement continued to

be printed in the Virginia Medicaid Provider Manual until 2011. 

Two witnesses testified that the regulation may have changed before

2011, and counsel for Mr. Perry cited some of this testimony to

the jury during closing arguments.       By and large, however, both

sides assumed at trial that the live-in requirement remained in

effect until 2011 and solicited testimony to this effect.             In

addition, the government asked various primary caregivers whether

they lived in the home with the Medicaid patients.        Many of these

family members testified that they lived far away from their

patients and had never even heard of respite care. 

     The Perrys claim that testimony about the live-in requirement

misled the jury into believing that they committed fraud by billing

for respite care hours that CPC employees worked on behalf of

primary caregivers who did not live with their Medicaid patients. 

If the government had presented this theory at trial, then the

Perrys might have cause for overturning their convictions.          See

United States v. Moye, 454 F.3d 390, 400 n.10 (4th Cir.  2006)

(discussing   the   distinction    between    legally   and   factually

insufficient theories of prosecution).        But the government did not

present this theory, nor did it so much as mention the live-in

requirement during closing arguments.     In fact, Mr. Perry himself

                                  17
testified that before 2011, the primary caregiver had to live in

the home. 

     Instead, the government stressed that testimony about the

Medicaid regulations was offered only as background information

and to help prove that the Perrys acted with fraudulent intent. 

As the government explained in closing arguments, testimony about

the residences of particular family members was not offered to

establish that CPC provided respite care on behalf of ineligible

caregivers; instead, it was offered to establish that CPC did not

provide respite care at all because any hours they may have worked

could not have provided relief to family members who lived far

away and had no day-to-day care responsibilities for the patient. 

In light of the Perrys’ knowledge and familiarity with the respite

care regulations, this provided evidence that the respite care

billing was fraudulent and not merely a product of accident or

mistake.     The   district   court   reinforced   this   point   in   its

instructions to the jury.      In light of the government’s limited

use of the testimony surrounding the live-in requirement and the

district court’s instructions, there is no reasonable likelihood

that testimony about the live-in requirement affected the judgment

of the jury. 

     The Perrys also claim that the government misled the jury

into believing that primary caregivers must personally request

respite care rather than communicating through their patients.          As

                                 18
with the live-in requirement, the testimony on this point was vague

and muddled.     A few government witnesses did appear to testify to

this effect, including Special Agent Wright, who stated, “If

there’s not a caregiver that has ever requested respite, the hours

billed are fraud.”     J.A. 1450.    Mr. Perry himself also agreed that

“the primary caregiver is the individual that’s supposed to be

requesting the use of the respite hours,” though he added that

requests “didn’t always happen that way as a practical matter.” 

J.A. 2205.      On the other hand, at least one government witness

stated that patients could call to schedule respite hours on behalf

of their caregivers. 

     We are not convinced that the testimony cited by the Perrys

was actually false; in context, these witnesses appear to have

been referring to the particular individual for whose benefit

respite care is provided, rather than the mechanics of how the

caregiver communicates with the home healthcare company.           In any

event, this argument fails for the same reasons discussed above

with regard to the live-in requirement.     Testimony that particular

primary caregivers did not request respite care was not offered to

establish that CPC relied on improper channels of communication,

but rather to establish that the respite care hours CPC claimed to

have worked were not provided for the primary caregiver’s benefit

and, thus, did not qualify as respite care.          In light of the

Perrys’   knowledge    and   familiarity   with   the   respite     care

                                   19
regulations, this provided evidence that the respite care billing

was fraudulent and not merely a product of accident or mistake. 

And    as    with   the      live-in     requirement,         the    district       court’s

instructions limited the jury to this permissible use of this

evidence.         Thus, there is no reasonable likelihood that this

evidence impermissibly affected the jury’s decision. 

       The Perrys next contend that the government impermissibly

used   violations       of   civil     regulations       as    the   basis        for   their

criminal convictions.               At trial, however, the district court

clearly instructed the jury that the Perrys were not charged with

violating civil regulations and that evidence of these regulations

was    admitted     only     to   show   their     knowledge        and    intent.        The

government       also   stressed       this    point    to    the    jury    on    multiple

occasions.        In light of these admonitions, as well as undisputed

evidence that the Perrys were familiar with the regulations in

question, there was no danger that the jury would convict them of

fraud or knowingly making false statements simply because they

violated DMAS regulations. 

       Finally, the Perrys argue that the government’s theory of

respite care fraud renders their convictions void for vagueness. 

“A statute is unconstitutionally vague if it fails to provide

people      of   ordinary     intelligence         a   reasonable         opportunity     to

understand what conduct it prohibits, or if it authorizes or

encourages arbitrary and discriminatory enforcement.”                          McLean, 715

                                              20
F.3d at 136.     Here, DMAS regulations stated that respite care

services may only be provided “because of the absence of or need

for relief of those unpaid persons who routinely provide the care.” 

12 Va. Admin.  Code § 30-120-766(A)(1) (2008).               At trial, the

government argued that hours billed for respite care services were

fraud, even if CPC employees actually worked them, so long as the

hours were worked without a request from the patient or caregiver

and without regard for whether the caregiver needed relief. 

     Contrary   to   the   Perrys’    assertion,   the    regulations   in

question are not unconstitutionally vague.          True, at least one

witness testified that DMAS regulations governing respite care

services are looser than those governing personal care services. 

But the DMAS regulations clearly provide that respite care services

may only be used to benefit “an unpaid caregiver who requires

temporary relief to avoid institutionalization of the individual.” 

12 Va. Admin.  Code § 30-120-766(B)(2) (2008).             At trial, almost

every CPC witness — including Mr. Perry — testified that they

understood this basic contour of the regulations.              No witness

expressed any doubt that billing for respite hours that either

were not worked or that were worked without regard to the needs of

an unpaid caregiver would be fraud.  The Perrys’ argument therefore

lacks merit. 




                                     21
                                           IV. 

       The Perrys next challenge the district court’s instructions

to the jury regarding the meaning of the term “willfully.”                     Counts

2-13 of the indictment charged the Perrys with violations of 18

U.S.C. §§ 1035 and 1347.                Section 1035 makes it a crime to

“knowingly and willfully make[] any materially false, fictitious,

or   fraudulent        statements     or    representations”      in   any    matter

involving a health care benefit program.                  Section 1347 makes it a

crime to “knowingly and willfully execute[], or attempt[] to

execute, a scheme or artifice to defraud any health care benefit

program.”        The district court instructed the jury that, for the

purposes of these offenses, “[a] person acts ‘willfully’ . . . 

when     that         person   acts        deliberately,       voluntarily,      and

intentionally.”           J.A. 2795; see also J.A. 2793 (instructing the

jury that conduct is “knowing” when the actor is “conscious and

aware” of his actions, rather than acting due to “ignorance,

mistake, or accident”). 

       The Perrys contend that a defendant must know that his conduct

is unlawful in order to act “willfully” for purposes of §§ 1035

and 1347.        Although the Perrys proposed a different instruction,

they    did     not     specifically       object   to   the    district     court’s




                                            22
instruction at trial.  5       As a result, we review this instruction

for plain error.         United States v. Nicolaou, 180 F.3d 565, 569

(4th Cir.  1999) (citing Fed.  R. Crim.  P. 52(b)). 

     An error is plain when it is “clear or obvious, rather than

subject to reasonable dispute.”            United States v. Marcus, 560 U.S.

258, 262 (2010).          Conversely, an error is not plain when this

“court has never addressed [the issue], and the other circuits are

split on the issue.”        See United States v. Wynn, 684 F.3d 473, 480

(4th Cir.  2012). 

     “[I]gnorance of the law generally is no defense to a criminal

charge.”        Ratzlaf v. United States, 510 U.S. 135, 149 (1994).            The

First    and    Ninth   Circuits   have    applied   this   general   rule    to

convictions under § 1035, holding that a defendant does not need

to know that his conduct is unlawful in order to act willfully for

the purposes of that statute.          United States v. Russel, 728 F.3d

23, 31–33 (1st Cir.  2013), vacated, 134 S. Ct.  1872 (2014); United

States v. Ajoku, 718 F.3d 882, 889–90 (9th Cir.  2013), vacated,

134 S. Ct.  1872 (2014).             However, the Supreme Court summarily

vacated those opinions and remanded the cases for reconsideration



     5 The Perrys proposed an instruction that defined willfully
as “voluntarily and intentionally, with intent to do something the
law forbids, and with knowledge that [the defendant’s] conduct was
unlawful.”     J.A. 4407.      The government proposed a similar
instruction.  See J.A. 2710 (defining willfully as requiring both
purpose and “knowledge that [the defendants’] conduct was, in a
general sense, unlawful”). 

                                      23
after the Solicitor General adopted a position similar to that

advanced by the Perrys in this case.    See 134 S. Ct.  at 1872.    The

Perrys also point to two Supreme Court decisions recognizing an

elevated mens rea requirement for willfulness in other, unrelated

criminal statutes.    See Bryan v. United States, 524 U.S. 184, 196–

200 (1998) (dealing in firearms without a license); Ratzlaf, 510

U.S. at 146–49 (restructuring financial transactions to avoid

reporting requirements).     Finally, the Perrys rely on two recent

cases that cite the Bryan willfulness standard in reviewing the

sufficiency of the evidence in a § 1347 claim.     See United States

v. Iwuala, 789 F.3d 1, 12 (1st Cir.  2015) (citing Bryan but

equating knowledge of unlawfulness with intent to defraud); United

States v. Franklin-El, 555 F.3d 1115, 1122 (10th Cir.  2009) (same). 

      The word willful has many meanings, which often vary depending

on the context in which the term is used.      Ratzlaf, 510 U.S. at

141.  Section 1035 closely tracks the language of 18 U.S.C. § 1001,

and courts have interpreted the two statutes as containing the

same mens rea requirement.     See, e.g., Natale, 719 F.3d at 739–

42.     This Court has endorsed jury instructions in the § 1001

context that were similar to the one given by the district court

in this case.    See, e.g., United States v. Daughtry, 48 F.3d 829,

831–32 (4th Cir.  1995), vacated on other grounds, 516 U.S. 984. 

      In light of the foregoing, the meaning of the term willfully

in §§ 1035 and 1347 is, at a minimum, subject to reasonable debate. 

                                 24
Neither the Supreme Court nor this Court has directly addressed

the issue, and cases discussing “willfully” can be used to defend

and   critique    the   district   court’s    instruction.         For   present

purposes, it suffices to say that Fourth Circuit law on this issue

is not clear at present, and thus the district court’s instruction

was not plainly erroneous.          See United States v. Olano, 507 U.S.

725, 734 (1993) (stating that an appellate court “cannot correct

an error pursuant to Rule 52(b) unless the error is clear under

current law”). 

      In addition, even if the district court misconstrued the

meaning of the term willful, this would not warrant reversal of

the Perrys’ convictions.         Jury instructions must be evaluated as

a whole, and the failure to give a particular instruction does not

warrant reversing a conviction unless the proposed instruction

covered a point that was not substantially covered by the court’s

other instructions to the jury.          See Noel v. Artson, 641 F.3d 580,

586–87 (4th Cir.  2011) (citing Henderson v. Kibbe, 431 U.S. 145,

153 n.10 (1977), and United States v. Lighty, 616 F.3d 321, 366

(4th Cir.  2010)).        Here, the other instructions adequately ensured

that the jury’s verdict was based on a correct understanding of

the law.    Specifically, the district court instructed the jury on

fraudulent intent, which it defined as acting “knowingly and with

the   intention    or   the   purpose    to   deceive   or   to   cheat   . . . 

accompanied, ordinarily, by a desire or a purpose to bring about

                                        25
some gain or benefit to oneself or some other person or by a desire

or a purpose to cause some loss to some person.”          J.A. 2830.    And

the   court   instructed   that   false,   fictitious,    or   fraudulent

statements or misrepresentations are “untrue when made or when

used and [are] known by the person making it or using it to be

untrue”; as well as “made or used with the intent to deceive.” 

J.A. 2838.     Most importantly, the court instructed that good faith

was a complete defense to all of the charges in the superseding

indictment because it was “inconsistent with the intent to defraud

or to obtain money by means of false or fraudulent pretenses,

representations, or promises.”      J.A. 2803.     And it explained that

if a person acts “on a belief or an opinion honestly held,” or

with the “absence of malice or ill will, and [with] an intention

to avoid taking unfair advantage of another,” then the person acts

in good faith and cannot be found guilty.        J.A. 2803. 

      Viewed as a whole, then, these instructions ensured that “the

jury actually made an equivalent or identical finding” as that

contained in the willfulness instruction the Perrys argue should

have been given.      See United States v. Whitfield, 695 F.3d 288,

304 (4th Cir.  2012).        Under these circumstances, any error was

harmless and therefore not reversible, particularly under plain

error review.     See id.

      Finally, the Virginia Provider Manual clearly stated that it

was a crime to fill out invoices falsely, and Mr. Perry admitted

                                   26
that he knew the type of conduct alleged in counts 2 through 13

was illegal.  All he denied at trial was being part of that conduct. 

“No reasonable jury could have found that [the Perrys] intended to

deceive or cheat the Federal Government but did not know that such

conduct is unlawful, especially in light of the warnings” in the

Virginia Medicaid Provider Manual and elsewhere.  See United States

v. Awad, 551 F.3d 930, 940 (9th Cir.  2009).        Accordingly, the

totality of the record supports no other conclusion but that the

Perrys were guilty.    Under these circumstances, the Court will not

reverse on plain error review.    United States v. Cedelle, 89 F.3d

181, 185–86 (4th Cir.  1996).    For each of these reasons, we reject

this challenge. 

                                 V.

     For the foregoing reasons, the judgment of the district court

is

                                                         AFFIRMED. 




                                 27
