UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4932

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
JOHN C. SHARP,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Irene M. Keeley, District
Judge. (2:07-cr-00019-IMK-JSK-1)

Argued:

September 22, 2010

Decided:

November 5, 2010

Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and

James C. DEVER III, United States District Judge for the Eastern
District of North Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Paul Harris, Wheeling, West Virginia, for Appellant.

Alan McGonigal, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellee.
ON BRIEF: Joseph M. Spivey,
Lexington, Virginia; Joseph A. Wallace, Elkins, West Virginia,
for Appellant. Betsy C. Jividen, Acting United States Attorney,
Charleston, West Virginia, Randolph J. Bernard, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Dr. John C. Sharp (Sharp) appeals his convictions upon
twenty-nine

counts

U.S.C. 1347.

of

health

care

fraud,

in

violation

of

18

On appeal, Sharp alleges numerous errors, which

this Court has construed 1 as including, but not limited to: that
the district court abused its discretion by allowing certain
statistical evidence at trial and by allowing testimony from a
non-physician medical billing and coding expert, that Sharp was
deprived

of

his

right

to

testify

on

his

own

behalf,

prosecutorial misconduct, that certain counts in the indictment

were time-barred, and that 1347 was inapplicable.

For the

following reasons, we affirm the district courts judgment.

Recounting the issues on appeal has proven challenging, as

the arguments are difficult to discern from Sharps briefs.
Sharp has also violated Federal Rule of Appellate Procedure
28(a)(9)(B) by failing to include an applicable standard of
review for any of the issues he raises.
However, we note that
during oral argument counsel conceded that the Governments
proposed standards of review are accurate.
Although Sharp failed to satisfy the mandates of Rule 28,
which in many instances may result in dismissal of the appeal,
see, e.g., Harrelson v. Lewis, 418 F.2d 246, 247 (4th Cir.
1969), this Court has a measure of discretion . . . whereunder
it may consider an appellants claim of error, even despite its
inadequate assertion, especially when the pertinent record
appears fully to be before the court, and the controverted
questions have actually been argued. Indemnity Ins. Co. of N.
Am. v. Pioneer Value Sav. Bank, 343 F.2d 634, 643 (8th Cir.
1965).
We exercise that discretion in this case with the
admonition to Sharps counsel that they should take greater care
in future appeals.

I.
Sharp was a doctor of osteopathic medicine and licensed to
practice in the state of West Virginia.

He operated a general

family practice medical clinic under the name Pocahontas Medical

Clinics (PMC).
Sharp was enrolled as a provider with Medicare, Medicaid,
and the West Virginia Workers Compensation Program (WVWC).
These third party payers pay claims using a national billing
coding

practice

Terminology

based

(CPT)

on

the

system,

Physicians

which

is

Current

published

Procedural

in

Current Procedural Terminology Manual (CPT Manual).

the

AMA

The CPT

Manual provides codes for each of the services provided to the

programs beneficiaries by the provider, with descriptions of
each.

The codes are meant to account for the length of the

doctors visit with the patient, the complexity involved in the

medical decision making, and the patients medical history.
Each of the counts against Sharp charged that he knowingly
and

fraudulently

misused

the

billing

codes.

The

charges

represent three general schemes: (1) the fraudulent misuse of

so-called prolonged services codes, which are codes that are
used

for

visit

that

requires

face-to-face

time

with

the

patient that is longer than the typical time spent rendering

that type of procedure or service; (2) upcoding, or submitting

claims

for

higher

level

service

than

the

one

actually

rendered; and (3) billing for services not rendered.

During trial, the Government called two expert witnesses
whose testimonies are relevant to this appeal.

The first was

Betty Stump (Stump), a medical coding and billing expert.

In

sum, Stump testified that she reviewed the office visit progress
notes maintained by Sharp and determined that Sharps billings
were not supported by the documentation.

The Government also

called Dr. Klaus Miescke (Miescke), a statistician.

Because

Sharp submitted over 15,000 claims to the third party payers

during the relevant time period, the Government asked Miescke to
select a statistically valid random sample of the claims to
determine the estimated total amount of loss to Medicare and
Medicaid. (Appellees Br. 11).
At the conclusion of trial, the jury returned a verdict
convicting

Sharp

on

all

counts,

and

he

was

sentenced

to

36

months imprisonment.
Sharp moved for a new trial, or in the alternative, for a
judgment of acquittal, alleging multiple errors which included
ineffective assistance of counsel, that certain counts of the
superseding

indictment

were

time-barred,

prosecutorial

misconduct, that 18 U.S.C. 1347 was inapplicable to workers

compensation programs, that the district court erred by allowing
Miesckes

and

Stumps

testimonies,
5

insufficiency

of

the

evidence,

that

the

district

instruction,

court
and

erred

by

challenges

not
to

including

several

proposed

jury

trial

rulings.

After holding a post-trial hearing, the district court

denied Sharps motion in a written order.

Sharp

noted

timely

appeal,

and

this

Court

has

jurisdiction over the appeal pursuant to 28 U.S.C. 1291 and 18

U.S.C. 3742(a).

II.
A.
Sharp

argues

that

the

district

court

erred

by

allowing

certain expert testimony at trial; namely, that Miesckes use of

statistical extrapolation to estimate loss was allowed in error,
and that Stumps testimony was allowed in error because she is
not a physician. 2
This Court reviews a district courts evidentiary rulings,
including rulings on the admissibility of expert testimony, for
abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136,
2

In his brief, Sharp originally frames these issues as

alleging that the Government failed to meet its burden by not
providing expert testimony from a physician, (Appellants Br.
1), and that [i]ntroduction of evidence contained in paragraphs
10, 11 and 12 of the Superseding Indictment were unduly
prejudicial because statistical evidence is not appropriate at
trial. (Appellants Br. 2). We have reframed the issues in an
attempt to make sense of Sharps convoluted opening brief while
endeavoring to sufficiently address the substance of his claims.

141-42 (1997).

The question of whether expert testimony is

admissible is within the sound discretion of the trial judge,

and

appellate

courts

normally

defer

to

the

trial

judges

decision. Persinger v. Norfolk & W. Ry. Co., 920 F.2d 1185,

1187 (4th Cir. 1990).

1.
Before trial, Sharp moved to exclude Miesckes testimony,
arguing

during

pre-trial

Daubert

hearing

that

it

is

inappropriate at the count phase for there to be extrapolation

testimony that goes to the amount of the loss. . . . [T]hat is a
sentencing issue, if we ever get there . . . . (J.A. 422).

The

district court considered the issue and decided to allow the

testimony.
Sharp raised the issue again in his motion for a new trial
or

for

acquittal.

The

district

court

held

that,

[a]fter

weighing the parties arguments, [the district court] has no

trouble concluding that Dr. Miesckes statistical testimony was
properly admitted, . . . and survives the defendants challenge
under Federal Rule of Evidence 403 because its probative value
substantially outweighed any unfair prejudice to the defendant.
(J.A. 323).
Although

Miesckes

statistical

evidence

would

also

have

been appropriate during the sentencing phase of the trial, we

7

find that the district court did not abuse its discretion by
allowing the testimony during trial. See United States v. Rosin,
263 Fed. Appx. 16, 21 (11th Cir. 2008) (unpublished) (mentioning
the use of similar testimony during trial).

First, we note that

Miescke provide[d] a valid foundation for his conclusions by

explaining how he reviewed the claims, the statistical methods
he used, and how he arrived at his proposed estimate of loss.
Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 200 (4th Cir.
2001); see Fed. R. Evid. 702.

Indeed, Sharp does not contest

Miescke validly qualified as an expert witness nor does Sharp

contend Miescke applied statistically invalid methods. 3
Furthermore, Miesckes testimony was relevant pursuant to
Federal Rule of Evidence 402; it gave the jury context as to the
extent

of

the

approximately

alleged
15,000

claims

burdensome.

Nor

pursuant

Federal

to

loss,

was

the
Rule

and
of

conducting

fraud

would

testimony
of

testimony
have

improperly

Evidence

403,

been

as

to

overly

prejudicial
particularly

considering that there was overwhelming evidence of guilt as to

each

count.

Sharps

actual

More
guilt

importantly,
or

the

Miescke

existence

never
of

opined

fraud.

See

as

to

United

In fact, during the Daubert hearing defense counsel agreed

that [w]e dont have a problem conducting the cross-examination
at this stage with the statistician coming forward and saying
this is what I did; this is how I arrived at this random sample
. . . . (J.A. 423).

States v. Sdoulam, 398 F.3d 981, 990 (8th Cir. 2005) ([The
expert

statistician]

made

no

statement

regarding

the

mathematical probability that [the defendant] was guilty of the

crimes charged.).
Moreover,

we

can

analogize

Miesckes

testimony

to

the

methods used to determine total drug amounts in drug trafficking

cases, which, while often conducted during the sentencing phase,
have at times been testified to during trial. See, e.g., United
States v. Tran, 519 F.3d 98, 106 (2d Cir. 2008); Sdoulam, 398
F.3d at 989-90; United States v. Royal, 87 Fed. Appx. 892, 894
(4th Cir. 2004) (unpublished); United States v. Maceo, 873 F.2d
1, 6-7 (1st Cir. 1989).
Finally,

defense

counsel

had

the

opportunity

to

cross-

examine Miescke and thus was able to challenge Miesckes method

of analysis or his conclusions.

Ultimately, it is the role of

the jury to arrive at its own conclusions as to the credibility

of the experts and the weight to give their testimony.

See

Maceo, 873 F.2d at 7 (It is the jurys role to determine the

credibility

of

witnesses

testimony.

After

full

and

the

weight

cross-examination,

to
the

accord
jury

choice whether to trust the testimony presented.).

their

had

the

On balance,

the district courts ruling was thus an appropriate exercise of

its discretion.

2.
Sharp

also

moved

to

exclude

Stumps

proposed

testimony,

arguing during the Daubert hearing that, although [s]he can

make a judgment as to whether or not the documentation supports
the code used, (J.A. 508), she cannot render an opinion as to
whether or not a particular medical decision should have been
labeled low, moderate, high in terms of complexity . . . . Only
a physician can determine that. (J.A. 506).

The district court

denied the motion, finding that

a coding expert, such as Ms. Stump, routinely
determines whether services billed by a provider are
appropriately coded and if a provider documents a
certain level of medical decision making, then the
documentation is factored into the coding and billing
decisions and I dont believe that this testimony will
confuse the jury.
I think it will be helpful to the
jury.
(J.A. 510).
Sharp raised the issue a second time in his motion for a
new

trial

or

for

acquittal.

In

the

district

courts

order

denying the motion, the court found that

[t]he issues in this case did not involve questions of
medical necessity, but rather alleged that Dr. Sharp
had submitted claims for payment for services he had
never rendered, or had sought reimbursement for higher
levels of service than he had actually provided.
In
similar health care fraud cases, coding experts have
routinely testified about whether services a provider
billed were appropriate. . . .
Because this case did not raise issues of medical
necessity or any other clinical issue requiring a
physicians testimony, and because the use of a coding
expert was appropriate, . . . the Court rejects
10

Sharps contention that the government was required to

provide expert physician testimony to prove health
care fraud . . . .
(J.A. 325-26).
On appeal, Sharp reiterates this argument.

In support,

Sharp cites several cases from other courts of appeals which he

contends stand for the proposition that physician testimony is
necessary to prove coding or billing fraud, including United
States v. Wexler, 522 F.3d 194 (2d Cir. 2008), United States v.
Bek, 493 F.3d 790 (7th Cir. 2007), and others.

However, these

cases are clearly distinguishable from the case at bar.

The

Second

controlled

Circuit

substances

held

and

in

health

Wexler,
care

distribution

fraud

case,

that

of
the

expert testimony of a physician expert regarding the standard

of care . . . was properly received by the District Court as
relevant to the question of Wexlers good faith in prescribing
the

controlled

substances

that

were

the

subject

indictment. Wexler, 522 F.3d at 204 (emphasis added).

another

case

dealing

with

the

distribution

of

of

the

In Bek,

controlled

substances and health care fraud, the Seventh Circuit held that
the jury could not assess whether Beks treatment of a patient
was within the normal course of professional practice without
medical

records

or

expert

testimony

as

to

the

patients

condition or Beks treatment of her. 493 F.3d at 799 (internal

quotations omitted).
11

However,
making

nor

in

the

case

appropriate

at

bar

standards

neither
of

care

clinical
were

decision

at

issue.

Instead, the question was whether Sharp knowingly used incorrect

codes

for

the

services

he

claimed

he

provided.

As

Stump

testified,
as a coder or an auditor Im not making any decisions
about the treatment plan for the patient; Im just
looking to see what did the doctor document; what did
he write down that the patients problem is; what did
he write down that his treatment plan is going to be.
What did he write down about when he wants to see the
patient back.
What did he write down about possible
risks to the patient.
I dont question what the
medical plan was; I simply evaluate it to determine
where it falls in the scope of severity for assigning
a code.
(J.A. 1163).

Medical billing and coding experts have been used

for this purpose without dispute in the Fourth Circuit.

See,

e.g., United States v. Janati, 374 F.3d 263, 271-72 (4th Cir.
2004) (noting that medical coding experts are used to determine
whether . . . documentation supports . . . billings under [the]
CPT).
Finally, we observe that during cross-examination defense
counsel questioned Stump about her status as a coder who is
not

[a]

clinician[]

[and

that]

determinations

regarding

the

propriety of medical decision making or a patients clinical

severity

are

omitted

from

the

coding

process.

(J.A.

1625).

Stump concurred that she does not make clinical decisions and
agreed with defense counsels statement that she is not [a]
12

clinician[]. (J.A. 1626).

Thus, the argument Sharp makes here

was before the jury and the jury properly performed its duty to
weigh the evidence and the credibility of each expert. Mosser
v. Fruehauf Corp., 940 F.2d 77, 83 (4th Cir. 1991) (internal
quotations omitted).
Consequently,

as

the

district

court

appropriately

found,

all the cases Sharp cites to support his argument that the
government

must

present

physician

expert

testimony

involved

disputed questions of medical necessity.

By their nature,

these

instant

are

clinical

cases

which,

unlike

the

case,

do

require the testimony of an expert health care provider. (J.A.

326).

Thus, the district court did not abuse its discretion in

permitting Stumps testimony.

B.
Sharp next alleges that he was deprived of his right to
testify on his own behalf, either as a result of ineffective
assistance on the part of his counsel, or due to the district
courts failure to sua sponte conduct an on the record colloquy
with Sharp to obtain a waiver of his right to testify.
At

post-trial

hearing,

Sharp

testified

that

he

had

planned to take the stand during trial, and that none of his
lawyers s[a]t down with [him] and [went] through an analysis .
.

[of]

the

risk

of

.
13

testifying,

the

benefit

of

testifying, risk of not testifying, benefit of not testifying.

(J.A.

3700).

Although

Joel

Hirschhorn

(Hirschhorn),

lead

trial counsel for Sharp, admitted that he was not sure whether
he said the magic words, he was sure that he had discussions
with

Sharp

about

whether

he

would

testify,

and

that

Sharp

concurred in [his] decision. (J.A. 3815).

The district court found that I dont have a circumstance
here where I believe I had to get an on the record waiver of the
right to testify because I didnt have any language or conduct
from

Dr.

Sharp

that

would

indicate

that

he

was

desirous

to

testify and that desire was being contravened by his attorneys.

(J.A. 3864).

The district court also found:

I dont think that its credible to believe that Dr.

Sharp was unaware of his lawyers strategic opinion
about the wisdom of him taking the stand.
. . . .
[I]t is difficult, if not impossible, for this Court
to believe that a man of Dr. Sharps experience and
intellect would not have questioned why no one was
preparing him for testimony the next day.
. . . .
Dr. Sharp had an ample opportunity between the close
of the evidence . . . [and] closing arguments . . . to
tell [his attorneys] that he felt hed been denied
what he had expected, which was the right to testify.
. . . .
So, on balance, when I weigh this evidence, there
is a complete lack of support from the totality of
that evidence for Dr. Sharps recollection as to how
this was handled.
(J.A. 3866-71).

14

In its order denying Sharps motion for a new trial or for

acquittal, the district court adopted these previous findings,
and further found that there was no agreement between Sharps
trial counsel and the government to deprive Sharp of his right
to testify. (J.A. 310).
This
findings

Court
under

reviews
a

legal

clear

issues

error

de

standard.

novo

and

United

factual

States

v.

Pettiford, 612 F.3d 270, 275 (4th Cir. 2010).

1.
This

Court

construes

Sharps

allegation

that

his

trial

counsel violated West Virginia Rules of Professional Conduct"

as

an

attempt

to

make

an

ineffective

assistance

of

counsel

argument. See Sexton v. French, 163 F.3d 874, 881 (4th Cir.
1998).

However, [t]he rule in this circuit is that a claim of

ineffective assistance should be raised in a 28 U.S.C. 2255

motion

in

unless

the

the

district

record

court

rather

conclusively

shows

than

on

direct

ineffective

appeal,

assistance.

United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992).
Because we find that it does not conclusively appear from the
record

that

Sharps

counsel

was

constitutionally

ineffective,

this Court will not consider Sharps ineffective assistance of

counsel claim.

15

However, even assuming arguendo that we could consider this

claim on appeal, this Court finds that the district court did
not clearly err in making the well-reasoned and detailed finding
that it was not credible that Sharp was unaware of his right
to testify on his own behalf or of the strategic decision not to
testify, and that there was a complete lack of support from the
totality of that evidence for Dr. Sharps recollection as to how
this was handled. (J.A. 3870).

2.
Sharp also urges this Court to adopt a rule that in cases
such as the one at bar, the trial court itself is required to
engage in an on-the-record colloquy with defendants when they
elect to rest their case without testifying, (Appellants Br.
13), and to find that the district court failed in this new
duty.
Although,

of

course,

the

right

to

testify

on

ones

behalf is one of the rights that are essential to due

own

process

of law in a fair adversary process, Rock v. Arkansas, 483 U.S.

44, 51 (1987) (quoting Faretta v. California, 422 U.S. 806, 819
n.

15

(1975)),

circuits

have

this

clearly

Court
held

and

the

that

majority

[t]o

waive

of
the

our

sister

right

[to

testify], all the defendant needs to know is that a right to

testify

exists,

and

the

district
16

court

need

not

advise

the

defendant of the right nor obtain a waiver.

United States v.

McMeans, 927 F.2d 162, 163 (4th Cir. 1991); see also United
States

v.

Richardson,

195

F.3d

192,

197-98

(4th

Cir.

1999);

United States v. Ortiz, 82 F.3d 1066, 1070-71 (D.C. Cir. 1996);

United States v. Pennycooke, 65 F.3d 9, 11-12 (3d Cir. 1995)
(holding

that

direct

colloquy

may

be

required

in

exceptional, narrowly defined circumstances); United States v.

Brimberry, 961 F.2d 1286, 1289-90 (7th Cir. 1992); Siciliano v.
Vose, 834 F.2d 29, 30 (1st Cir. 1987).
The holding in McMeans has not been overruled, altered, or
limited by the subsequent holding in Sexton, contrary to Sharps
suggestion.

In considering the question of who should bear the

burden of ensuring that the defendant is informed of the nature

and existence of the right to testify, the Sexton Court noted
that

the

McMeans

Courts

holding

unwise[]. 163 F.3d at 881.

that

trial

counsel,

not

responsibility

for

advising

testify,

thus

the

and

on

this

point

was

perhaps

Nevertheless, the Sexton Court held

the
the

burden

court,

has

defendant

of

of

ensuring

the
his

that

primary
right

to

criminal

defendant is informed of the nature and existence of the right

to testify rests upon trial counsel. Id. at 882. 4
4

We note that Sharp specifically admitted at the post-trial

hearing that he did know of his right to testify during the
trial:
(Continued)
17

Therefore, because the holdings of McMean and Sexton are

unequivocal on this issue, the question of whether this Court
should

adopt

Sharps

proposed

new

rule

is

foreclosed

and

cannot be overruled by this panel. See Mentavlos v. Anderson,

249 F.3d 301, 312 n.4 (4th Cir. 2001).

C.
Sharp
misconduct;
testimony

next

makes

first,
from

three

that

allegations

the

witness,

Government
Lois

Workman

of

prosecutorial

elicited

false

(Workman),

by

instructing her to only answer questions using the responses

yes or no; second, that the Government improperly misstated
the evidence; 5 and third, that the Government improperly exceeded

Q: Now you said that it was your understanding

throughout the whole trial, from beginning to end,
that you would eventually testify, is that right?
A: Thats correct, yes sir.
Q: Okay. Why did you think that?
A: I just knew thats a fact, that I would testify in
my defense. There was never any question about it.
(J.A. 3712).
5

Although Sharp makes the bare allegation that the

Government misstated the evidence, he makes no substantive
argument in his brief supporting this proposition.
Sharp has
again run afoul of Federal Rule of Appellate Procedure 28, which
requires that the argument section of an appellants opening
brief must contain the appellants contentions and the reasons
for them, with citations to the authorities and parts of the
(Continued)
18

the appropriate scope during its rebuttal argument by mentioning

certain altered records.
In its order denying Sharps motion for a new trial or for
acquittal, the district court found that Workman
did not answer only yes or no to questions asked
of her, but provided detailed answers throughout her
testimony. Moreover, . . . the portions of Workmans
testimony characterized in her affidavit as not
accurate were not material to the charges against
Sharp. Accordingly, the evidence adduced at trial and
otherwise found in the record does not support Sharps
allegation
that
the
government
presented
false
testimony during his trial.
(J.A. 316).
As

to

the

allegation

that

the

Government

exceeded

the

allowable scope during its rebuttal argument, the district court

found that
the complained-of reference to altered records by the
government came in response to the closing argument of
Sharps attorney referencing a memo by John Mitchell,
Sharps office manager. . . .
In addition, he had
argued that fraudulent claims arose due to John
Mitchells advice or innocent mistakes, and that
Sharps honest and law-abiding nature demonstrated
that he had not knowingly hidden anything.
Even if the governments statements in response
to this argument could be considered improper, they
did not unfairly prejudice Sharps substantive rights;
nor do they amount to reversible error.

record on which the appellant relies. Wahi v. Charleston Area

Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009) (internal
quotations omitted). Thus, this Court will not consider Sharps
argument that the prosecutor misstated the evidence.

19

(J.A. 317-19).
This Court reviews the denial of a motion for a new trial
for an abuse of discretion. United States v. Adam, 70 F.3d 776,
779 (4th Cir. 1995).
The test for prosecutorial misconduct has two components:
(1) the prosecutors remarks or conduct must in fact have been
improper,

and

(2)

such

remarks

or

conduct

must

have

prejudicially affected the defendants substantial rights so as

to deprive the defendant of a fair trial. United States v.
Chorman, 910 F.2d 102, 113 (4th Cir. 1990) (internal quotations
omitted).

1.
Although he fails to cite it in his brief, Sharp submitted
a post-trial affidavit from Workman in which she swore that a
few portions of her testimony were inaccurate and that she was
told by representatives of the Government that [she] was to
answer the questions with a yes or no. (J.A. 289).

We

assume this is Sharps support for his charge the Government

presented
review

of

false

testimony.

Workmans

cross-examination,

However,

testimony

the

proves

Government

even
the

asked

the

contrary.

questions

that required more than a yes or no response.

20

most

of

cursory
During
Workman

Consequently,

many of Workmans responses were more detailed and lengthy than

merely yes or no.
Furthermore,
provides

no

even

legal

if

Workman

authority

to

were

so

support

instructed,
his

Sharp

argument

that

requesting a witness to answer only yes or no has ever been

construed by any court as improperly eliciting false testimony.
Thus, there is simply no support for Sharps brazen accusation
that the Government acted improperly in questioning Workman. 6

2.
Sharp

also

fails

to

cite

to

any

legal

authority

that

supports his proposition that it constitutes reversible error

for the Governments rebuttal argument to reach matters beyond
the scope of the defendants reply argument.
However,

even

if

such

rule

exists,

the

Governments

reference to altered records was in direct reply to a theory

raised by the defense during closing argument and throughout the
trial; namely, the argument that any discrepancies in Sharps

We note that Sharp makes a serious charge against the

Government when he states in his brief that the government
knowingly presented false testimony during trial.
However,
Sharp does so without citation to the record, citation to
authority, and without explanatory argument. In doing so, Sharp
walks close to a line of ethical breach.
We strongly caution
counsel that such argument will be dealt with severely should it
occur again. See Federal Rule of Appellate Procedure 46(c).

21

records

or

billing

were

caused

by

human

error

mistakes,

typographical errors, data entry, sloppy work, careless work on

the part of Sharps office manager, John Mitchell (Mitchell),
or

others.

(J.A.

3626).

During

closing,

the

defense

specifically mentioned the so-called Mitchell memo which it

alleged
records.

proved
The

that

Mitchell

Government

encouraged

properly

employees

responded

to

to

the

alter

defenses

theory, arguing that Sharp was actually the one altering the
records because he had the most to lose or gain. (J.A. 3665).
Consequently, this Court finds that there is no evidence
that the Government engaged in any prosecutorial misconduct in
this case.

D.
Sharp

next

contends

that,

because

the

superseding

indictment was brought after the statute of limitations expired,

and

because

original

there

were

indictment

and

significant
the

variances

superseding

between

indictment,

the

certain

counts in the superseding indictment are time-barred.

In its order denying Sharps motion for a new trial, the
district

court

held

that,

because

Sharp

did

not

raise

the

affirmative defense of the statute of limitations at trial, he

has

waived

that

defense.

(J.A.

315).

Alternatively,

the

district court held that there is no basis to conclude that the

22

Superseding

Indictment

broadened

the

charges

in

the

original

Indictment such that the charges in the Superseding Indictment

are barred . . . . (J.A. 315).
We

need

not

determine

whether

the

changes

in

the

superseding indictment materially altered certain counts so that

they did not relate back to the date of the original indictment.
As the district court correctly found, because Sharp did not
raise a statute of limitations defense before or during trial,
he has consequently waived that defense. See United States v.
Williams, 684 F.2d 296, 299 (4th Cir. 1982) (The statute of
limitations . . . is not jurisdictional.

It is an affirmative

defense that may be waived.).

E.
Sharp also argues that 18 U.S.C. 1347 does not apply to
state-owned and operated workers compensation systems, such as
WVWC, because the statute does not specifically state that it
applies to state sponsored workers compensation programs nor
does the legislative history mention it. (Appellants Br. 24).
The district court found that Sharp cites no case law nor
any portion of the relevant legislative history in support of
his argument, and state workers compensation programs clearly
fall under the express provisions of 18 U.S.C. 1347. (J.A.
320-21).
23

This
novo.

Court

reviews

issues

of

statutory

construction

de

United States v. Linney, 134 F.3d 274, 282 (4th Cir.

1998).
Sharps

argument

is

wholly

without

merit.

The

term

healthcare benefit program, as used in 1347, is defined as

[A]ny public or private plan or contract, affecting
commerce, under which any medical benefit, item, or
service is provided to any individual, and includes
any individual or entity who is providing a medical
benefit, item, or service for which payment may be
made under the plan or contract.
18 U.S.C. 24(b). Therefore, based on the clear language of the
statute,

WVWC

healthcare

plainly

benefit

falls

under

program.

the

See,

express

e.g.,

definition

United

States

of
v.

Lucien, 347 F.3d 45, 52 (2d Cir. 2003).

F.
As to Sharps remaining claims, we have carefully reviewed
all of these claims, the record, and the parties arguments and
find that the district court, for the reasons expressed in its
well-reasoned order denying Sharps motion for a new trial or
for acquittal, properly denied relief. 7

As to Sharps claim that the district court erred during

sentencing, we find that, because Sharp failed to order a
transcript of the sentencing hearing, he has waived this issue
on appeal. See Keller v. Prince Georges County, 827 F.2d 952,
954 n.1 (4th Cir. 1987).

24

III.
For the foregoing reasons, the district courts judgments
are affirmed.
AFFIRMED

25