United States v. Eddie Louthian, Sr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4231

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

EDDIE WAYNE LOUTHIAN, SR.,

Defendant – Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Abingdon. James P. Jones, District

Judge. (1:12-cr-00002-JPJ-PMS-1)

Argued: March 18, 2014 Decided: June 23, 2014

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in

which Judge Niemeyer and Judge Agee joined.

ARGUED: Michael John Khouri, LAW OFFICES OF MICHAEL KHOURI,

Irvine, California, for Appellant. Janine Marie Myatt, OFFICE

OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.

ON BRIEF: Timothy J. Heaphy, United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

KING, Circuit Judge:

Eddie Wayne Louthian, Sr., was convicted in the Western

District of Virginia of multiple offenses arising from a health

care fraud scheme. On appeal, Louthian challenges each of his

convictions, as well as the district court’s forty-eight-month

sentence and forfeiture order of nearly $1 million. As

explained below, we are content to affirm.

I.

A.

Between 2005 and 2011, Louthian was President and Business

Manager of the Saltville Rescue Squad, Inc. (the “Squad”),

headquartered in Saltville, Virginia. 1 The Squad provided

ambulance transport for medical emergencies, plus, inter alia,

non-emergency transportation for dialysis patients. Although it

was nominally a volunteer organization, the Squad had a paid

staff, including Louthian. 2 The Squad billed Medicare and

1

We recite the relevant facts in the light most favorable

to the government, as the prevailing party at trial. See United

States v. Madrigal-Valadez, 561 F.3d 370, 374 (4th Cir. 2009).

2

Louthian’s salary in 2005, prior to the fraudulent

activities for which he was convicted, was approximately $28,000

per year. By 2010, his annual compensation had nearly doubled,

eclipsing $52,000.

2

certain private insurers, including Anthem Blue Cross/Blue

Shield (“Anthem”), for its services.

The Medicare system provides insurance coverage for

ambulance transportation to and from dialysis centers when

conveyance by other means would endanger a patient’s health.

Before authorizing payments for recurring, non-emergency

transports, Medicare requires the issuance of a physician

certification statement, also known as a Certificate of Medical

Necessity (“CMN”). Once issued, a CMN is valid for a period of

up to sixty days. Although a CMN is a prerequisite for such

transports, the existence of a valid CMN does not definitively

establish medical necessity. For that, Medicare relies on

contemporaneous documentation of the patient’s condition, as

observed by an emergency medical technician (“EMT”) or

paramedic. The ambulance staff fills out a form referred to as

a “call sheet” or “trip sheet” to provide that documentation.

The Medicare system is administered to ensure that claims

for dialysis transports are paid to providers as quickly as

possible. When such a claim is filed electronically, it must be

paid within fifteen days of receipt. If a claim is filed on

paper, it must be paid within twenty-nine days. Because of the

large volume of such claims for Medicare payments, little or no

inquiry is made into the validity of claims as they are

received. If a paid claim is ultimately suspected of having

3

been fraudulently submitted, the authorities will investigate

and pursue an appropriate reimbursement, in addition to

potential criminal charges — a procedure sometimes referred to

as “pay and chase.”

B.

In April 2008, the Medicare Fraud Control Unit of the

Virginia Attorney General’s Office (the “Fraud Unit” or the

“Unit”) began investigating the Squad’s activities. The Fraud

Unit suspected that the Squad was engaged in a scheme to falsely

bill Medicare and private insurers for services that were not

medically necessary. The Unit’s investigation focused on the

Squad’s billings for services to three dialysis patients,

referred to herein by their initials: “JR,” “NH,” and “BM.”

The Squad provided round-trip ambulance transportation for those

patients, up to three times per week, between their Saltville

homes and a dialysis center in Abingdon, Virginia, about twenty

miles away. For each such transport, the Squad billed Medicare

approximately $1,200 to $1,500. The Squad would also bill

Anthem, which was a secondary insurer for each of the three

patients. 3

3

According to the indictment, the aggregate of the false

billings to Medicare and Anthem with respect to the three

patients was in the neighborhood of $2.6 million, consisting of

more than $1.6 million billed to Medicare, plus about $1 million

billed to Anthem. The Squad was alleged to have received

(Continued)

4

During the investigation, Fraud Unit agents conducted video

surveillance and interviewed the Squad’s employees and other

witnesses. The Unit’s investigation established that JR, NH,

and BM could all walk, drive, and engage in other physical

activities without difficulty and, as a result, could readily

have been transported to dialysis by some less extraordinary

means. The Unit, working with the United States Attorney, also

unearthed evidence that Louthian and other Squad employees had

forged, altered, and lied about the three patients’ medical

conditions on documents submitted to support the Squad’s

requests for payments. During the investigation, Louthian

appeared before a federal grand jury in Abingdon, where he

testified concerning the Squad’s activities.

On January 17, 2012, Louthian, Squad employee Monica Hicks,

and the Squad itself were indicted by the grand jury. Louthian

was charged in Count One with conspiracy to commit health care

fraud, see 18 U.S.C. § 1349; in Count Two with the substantive

offense of health care fraud, see id. § 1347; and in Counts

Three through Six with making false statements for payment by a

reimbursements for these billings of around $880,000, accounting

substantially for the district court’s criminal forfeiture award

exceeding $907,000.

5

health care benefit program, see id. § 1035. 4 Counts Seven and

Eight alleged money laundering, see id. § 1957, and Count Nine

alleged that Louthian committed perjury before the grand jury,

see id. § 1623. Hicks and the Squad were charged with Louthian

in Counts One through Six (the “health care offenses”), and the

Squad was a codefendant with Louthian in Counts Seven and Eight.

Count Ten charged Hicks and the Squad with making false

statements for payment by a health care benefit program. See

id. § 1035. Finally, the indictment included a Notice of

Forfeiture to each defendant. See id. § 982. On June 28, 2012,

Hicks pleaded guilty to Count One, pursuant to an agreement with

the United States Attorney. Louthian and the Squad, on the

other hand, opted to go to trial.

C.

The jury trial of Louthian and the Squad, which began in

Abingdon on September 10, 2012, lasted for about ten days. The

prosecution called roughly two dozen witnesses, including

Medicare and Anthem administrators and investigators, law

enforcement officers, current and former Squad employees, and

neighbors and family members of the three dialysis patients.

4

A “health care benefit program” is “any public or private

plan or contract, affecting commerce, under which any medical

benefit, item, or service is provided to any individual.” See

18 U.S.C. § 24(b). Medicare and Anthem are health care benefit

programs for the purposes of the health care offenses.

6

The prosecutors initially focused on the Fraud Unit’s

observations of JR, NH, and BM. The evidence confirmed that,

despite their need for regular dialysis treatment, the three

patients lived relatively active lifestyles that belied their

purported immobility. For example, patient JR regularly walked

to and from the Squad’s ambulance under her own power, often

climbing into the ambulance through its side door. A neighbor

saw JR at various times working in her yard, shopping at the

grocery store, and walking around at other locations.

Investigator Branson of the Unit conducted video surveillance of

JR that corroborated the neighbor’s account. One video clip

showed JR being carried on a wheeled stretcher from the Squad’s

ambulance to her porch. She then climbed off the stretcher on

her own and, showing no distress, got into a car to drive to a

local senior center. Squad employees confirmed that JR was able

to walk to and from the ambulance, step into the ambulance

through its side door, and climb onto the stretcher without

assistance.

The evidence concerning patient NH was similarly damning.

Several video clips showed that NH was able to move around

rather easily while being transported by the Squad, including a

clip where NH was allowed to stop at a Hardee’s restaurant for

breakfast on the way to a dialysis appointment. Investigator

Darby of the Fraud Unit described an incident in which NH,

7

immediately after being taken to her porch on a stretcher, stood

in her doorway briefly conversing with Squad employees, then

drove to a nearby town to shop at several stores. As with JR,

Squad employees confirmed that NH was able to walk and stand,

and was not bedridden. In fact, while being transported, NH

would often sit in the captain’s chair in the back of the

Squad’s ambulance. NH’s mid-transport Hardee’s visits were

shown to be regular occurrences, and NH sometimes even walked

into the restaurant herself. One Squad witness related that NH

was a guest of the Squad at its holiday parties.

The third patient, BM, passed away before the Fraud Unit

had an opportunity to observe him. BM’s daughter, however,

explained that BM had been her mother’s primary caretaker. As

such, BM did the grocery shopping, administered his wife’s

medicines, and kept up with her medical appointments. BM would

drive himself to doctor’s appointments, work in his garden, and

help seal driveways for his son’s paving business. Former Squad

employees admitted that BM was using ambulance transport

notwithstanding their knowledge that he could walk, stand, and

drive. The prosecution also introduced BM’s medical records,

along with those of the other two patients. The records were

replete with references indicating that each of them could walk,

stand, and engage in nearly all the normal activities of daily

living.

8

According to Hicks (the convicted codefendant), Louthian

knew that Medicare and Anthem would not pay the Squad for

transporting JR, NH, and BM to dialysis if their physical

conditions were properly reported. Consequently, at Louthian’s

direction, Squad employees and volunteers engaged in a pattern

of forging and altering CMNs, recording false information on

call sheets, and making other material misrepresentations that

Louthian hoped would “get [the] transports paid.” J.A. 576. 5

Because a patient’s condition is subject to change,

Medicare regulations require that transportation service

providers obtain a new CMN for each patient every sixty days.

Nonetheless, the Squad billed Medicare and Anthem for almost

eighteen months (from July 2006 to January 2008) without

obtaining a new CMN for either JR, NH, or BM. Instead, Louthian

and Hicks altered the dates of old CMNs and submitted them in

aid of reimbursement. According to Hicks, she and Louthian were

well aware that the justifications in the old CMNs — for

example, that the patients could neither stand nor walk, or were

bedridden — were not true.

Louthian and his fellow Squad employees were even more

brazen in their falsifications of call sheets generated for

5

Citations herein to “J.A. __” refer to the contents of the

Joint Appendix filed by the parties in this appeal.

9

transports. For example, Louthian taught Hicks to use “good

word[s]” like “non-ambulatory” in her narratives, regardless of

a patient’s actual condition. J.A. 660. Tellingly, Hicks

admitted that she did not then know what “non-ambulatory” meant

— only that its incantation would help ensure payments. Once

Hicks “knew how to fill them out to get them paid,” Louthian

instructed her to prepare call sheets in advance for other Squad

employees, who would then sign them. Id. at 576. On those

sheets, Hicks would make notations such as “unable to stand,”

even though she and Louthian, who were frequently in ambulances

with the patients, knew the representations to be false.

Several Squad employees acknowledged using call sheets that

were prepared in advance, and also being instructed by Louthian

to embellish call sheets with fabricated details. Bunch, an

EMT, identified several occasions when he placed false

information on call sheets at Louthian’s direction. For

example, a call sheet dated May 31, 2006, when Bunch was the

ambulance driver and Louthian was the attendant-in-charge,

reported that NH was “non-ambulatory,” “stretcher bound,”

“unable to stand,” and in need of “O2 [oxygen] in transport.”

All of these entries were false. See J.A. 382-84. EMT Lee

conceded that a July 1, 2006 call sheet with her name on it was

written by someone else, explaining that the narrative contained

false statements about JR’s health. EMT Cassel admitted that

10

her statements on two call sheets were untrue. Another Squad

employee, McAllister, testified about call sheets involving

patient BM. Although the narratives indicated that BM’s chronic

health concerns caused him to fall frequently, McAllister had no

recollection of BM ever falling. Finally, EMT Bellinger

admitted signing prerecorded call sheets and creating her own

false narratives at Louthian’s request. Bellinger confirmed

that Squad employees were instructed to use words like “non-

ambulatory,” even when the patients could walk, and that

Louthian told her to report that NH was “partially blind,” even

though Bellinger had seen NH driving her own vehicle. Id. at

695.

After Louthian learned that the dialysis transports were

under investigation, he caused the Squad to alter the manner in

which it transported patients, in an effort to cover up the

false billing scheme. Once Louthian realized the Squad was

being watched by the investigators, he insisted that the

patients be kept on stretchers at all times and not allowed to

walk to and from the ambulances. The Squad’s minutes of a May

19, 2008 meeting reflected Louthian’s change of procedure and

11

indicated why it was made, stating: “TRANSPORTS: TAKE IN AND

OUT OF HOUSE ON COTS. HAD FOLLOWERS ON TRANSPORT.” J.A. 1211. 6

On February 17, 2009, Louthian was questioned before the

federal grand jury regarding the changes he had made to the

Squad’s transport procedures after becoming aware of the Fraud

Unit’s investigation. That testimony resulted in the perjury

charge against him. Count Nine alleged that Louthian’s answers

to the following grand jury inquiries were materially false:

Q: Approximately when was it that the people who were

being transported for dialysis were always on a

stretcher? When did you say this has gotta end, these

people have to be on a stretcher?

A: I don't recall I said that except as far as [NH]

was concerned. I, I told ‘em, I said “I don't care

how much hell she raises, I don't care what she says,

she’s either going on a stretcher or she ain’t going.”

Q: And when was this?

A: That's been a couple a years ago.

Q: A couple of years ago?

A: Yeah.

Q: And you believe that she was being transported in

that manner after that?

A: That was my understanding, yes ma’am.

Q: Okay. And she was eventually —

6

The word “FOLLOWERS,” as used in the May 19, 2008 meeting

minutes, was construed by the prosecutors to refer to Louthian’s

concern that the transports were being watched and investigated.

The jury, by its verdict, agreed with that construction.

12

A: She was always on it when I went.

J.A. 41 (emphasis in indictment). The questions and answers

particularized in Count Nine were submitted to the jury with the

appropriate instructions. The prosecutors argued that Louthian

perjured himself when he told the grand jury that NH was always

transported on a stretcher in his presence, and that things had

been done that way for a couple of years. Indeed, Louthian’s

testimony was directly contradicted by video evidence showing NH

walking from the ambulance to her front door, with Louthian

present, just nine months before his grand jury appearance.

The prosecution rested its case on September 18, 2012.

Louthian then moved for acquittal under Federal Rule of Criminal

Procedure 29, asserting that the evidence failed to make a prima

facie showing of fraud. The district court denied the acquittal

motion, after which the defense also rested. Following closing

arguments and instructions, the jury deliberated and returned

its verdict. Louthian was convicted of the health care offenses

in Counts One through Six, plus perjury as charged in Count

Nine, but was acquitted of the Counts Seven and Eight money

laundering charges. The Squad was acquitted of all charges.

Louthian thereafter sought post-trial relief on the basis of

what he called “inconsistent verdicts,” i.e., that although he

13

had been convicted, the Squad was acquitted. The court denied

that motion as well.

D.

On November 19, 2012, the district court conducted a

hearing on the prosecution’s request for a criminal forfeiture.

Evidence was then introduced demonstrating that Medicare and

Anthem paid more than $900,000 for dialysis transports of JR,

NH, and BM. 7 The prosecutors also presented evidence

establishing the value of real estate and other property owned

by the Squad, identifying various bank accounts into which

fraudulent payments had been deposited.

On February 15, 2013, the district court filed its opinion

on the criminal forfeiture issue. See United States v.

Louthian, No. 1:12-cr-00002 (W.D. Va. Feb. 15, 2013), ECF No.

244. The court therein concluded that the government was

“entitled to a money judgment of forfeiture against [Louthian].”

Id. at 5. Accordingly, the court entered a preliminary order of

forfeiture against Louthian of $907,521.77.

Louthian’s sentencing hearing was conducted on March 20,

2013. The presentence report (“PSR”) grouped his seven

convictions and calculated a total offense level of 32 with a

7

The evidence at the forfeiture hearing established that

approximately $772,000 was paid to the Squad by Medicare, and

another $135,000 was paid by Anthem.

14

criminal history category of I. As a result, Louthian’s

advisory Guidelines range was 121 to 151 months of imprisonment.

At the hearing, Louthian lodged objections to several aspects of

the PSR, including his punitive classification as a leader or

organizer of the fraud scheme, an enhancement for abusing a

position of trust, an enhancement for obstruction of justice,

and the loss calculation.

The district court rejected each of Louthian’s objections

and adopted the PSR. The court also denied Louthian’s request

for a downward departure based on his age (sixty-one years),

poor health (severe bleach allergy, depression, hypertension,

osteoarthritis, and diabetes), and lack of a criminal history.

The court nevertheless varied downward from the advisory

Guidelines range and imposed seven concurrent prison terms of

forty-eight months each. On March 21, 2013, the court entered

its criminal judgment, incorporating the preliminary order of

forfeiture. The forfeiture order was subsequently amended,

necessitating amendment of the criminal judgment, which occurred

on April 15, 2013. Louthian has timely noted this appeal, and

we possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a).

15

II.

Louthian contends that myriad errors infected his trial and

sentencing. Most vigorously, Louthian challenges the

sufficiency of the evidence used to convict him of the health

care offenses in Counts One through Six and of the perjury

offense in Count Nine. Louthian asserts further that the jury

returned inconsistent verdicts, with the result that the

district court should have granted his motion for post-trial

relief. With respect to the sentence imposed, Louthian

maintains that the court erroneously denied his request for a

downward departure, and that he was improperly subjected to

criminal forfeiture proceedings. We assess these contentions in

turn.

A.

We first evaluate Louthian’s challenge to the sufficiency

of the evidence supporting his convictions on the health care

offenses. We will sustain a guilty verdict “if there is

substantial evidence, taking the view most favorable to the

Government, to support it.” United States v. Whitfield, 695

F.3d 288, 310 (4th Cir. 2012) (internal quotation marks

omitted). Substantial evidence exists if there is “evidence

that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.” Id. (internal quotation marks omitted).

16

In determining whether there is substantial evidence to support

a verdict, we defer to the jury’s determinations of credibility

and resolutions of conflicts in the evidence, as they “are

within the sole province of the jury and are not susceptible to

judicial review.” See United States v. Lowe, 65 F.3d 1137, 1142

(4th Cir. 1995).

In order to prove the conspiracy to commit health care

fraud (Count One) the government was required to show, inter

alia, an unlawful agreement between Louthian and at least one

other person to commit health care fraud. See 18 U.S.C. § 1349.

The substantive health care fraud offense (Count Two) required

proof that Louthian had

knowingly and willfully execute[d] . . . a scheme

. . . (1) to defraud any health care benefit program;

or (2) to obtain, by means of false or fraudulent

. . . representations . . . any of the money . . .

[of] any health care benefit program . . . in

connection with the delivery of or payment for health

care benefits, items, or services.

See id. § 1347. Finally, the four false statement charges

(Counts Three through Six) required proof that Louthian

“knowingly and willfully . . . ma[de] . . . materially false

. . . or fraudulent statements . . . in connection with the

delivery of or payment for health care benefits, items, or

services.” See id. § 1035.

The common thread sustaining or defeating Louthian’s

challenge to all six health care offenses is whether there was

17

sufficient evidence to prove that he made false and fraudulent

misrepresentations to a health care benefit program. Consistent

with his Rule 29 requests for acquittal, Louthian contends that

the prosecution fell short of its burden because it failed to

prove that the dialysis transport services provided to JR, NH,

and BM were not “medically necessary.” Br. of Appellant 9. In

that regard, Louthian relies on the regulatory provision in 42

C.F.R. § 410.40(d)(1), which specifies (with emphasis added)

that Medicare will pay for non-emergency ambulance

transportation if a patient’s medical condition, “regardless of

bed confinement, is such that transportation by ambulance is

medically required.” Predicated on that regulation, Louthian

argues that, although JR, NH, and BM were not bedridden, the

prosecution nevertheless had to prove beyond a reasonable doubt

that the patients could not otherwise have satisfied Medicare’s

requirements.

This contention fundamentally misapprehends the nature of

the health care offenses. Louthian was not convicted of

providing services to individuals who did not qualify for

insurance reimbursements. His convictions were based upon false

and fraudulent statements to Medicare and Anthem to secure

payments for the dialysis transports. Louthian and those under

his supervision falsely advised Medicare and Anthem that JR, NH,

and BM needed ambulance transportation because they were

18

bedridden. The trial evidence was more than sufficient to

support the jury’s finding that such representations were

untrue. The prosecution presented video, photographic, and

testimonial evidence illustrating that the Squad’s dialysis

transport patients were able to stand, walk, drive, shop,

garden, and perform manual labor, among other things.

Nonetheless, Louthian repeatedly caused call sheets to be

submitted describing the patients as bedridden, non-ambulatory,

and unable to stand or walk. Louthian himself was involved in

several of the relevant dialysis transports, and thus was

personally aware of the patients’ actual abilities. And when

Louthian learned that the Squad’s activities were under

scrutiny, he caused the Squad to alter its practices in an

effort to obstruct the Fraud Unit’s investigation and to cover

up his fraudulent misdeeds.

Even if Louthian’s premise is assumed to be valid — that he

could not be guilty of the health care fraud offenses unless the

prosecution proved that the ambulance transports were not

medically required — his defense theory would nevertheless fail.

Employing a definition of medical necessity that suits his

purposes, Louthian suggests that the health conditions of the

three patients were such that, without ambulance transport,

“there is a likelihood that they could have suffered serious

medical issues.” Br. of Appellant 10. But that argument

19

ignores the facts, i.e., that each of the three patients

frequently rode in automobiles — or even drove vehicles

themselves — and that, bedfast or not, they did not need an

ambulance to get around. Viewing the evidence properly, a

reasonable jury was entitled to find that ambulance

transportation of the three patients from Saltville to the

dialysis center in Abingdon was not “medically required” — by

any definition. 8 We therefore reject Louthian’s contention that

the evidence was insufficient to support his convictions on the

six health care offenses.

B.

Louthian’s challenge to evidence sufficiency on the perjury

offense in Count Nine must also be rejected. In order to meet

its burden on that charge, the prosecution was obliged to show

that Louthian knowingly made a false material declaration, under

8

In its closing argument, the prosecution illustrated the

absurdity of the notion that the patients’ true medical

conditions, if known to Medicare and Anthem, would have

supported the conclusion that ambulance transportation was

medically required. The prosecutor asked, “What if [Louthian

and the Squad] actually wrote what happened,” elaborating:

Imagine a [call] sheet for [NH]. “Patient walked to

ambulance from her home, stepped in through the side

door, patient sat in the captain’s chair until the

ambulance brought her to Hardees. She went into

Hardees for a ham biscuit, got back in.” [The bill to

Medicare] wouldn’t get paid.

J.A. 913-14.

20

oath, in his testimony before the grand jury. See United States

v. Wilkinson, 137 F.3d 214, 224 (4th Cir. 1998). At trial, the

prosecution argued that Louthian’s testimony to the grand jury

(that NH had been transported on the stretcher for “a couple of

years”) was inconsistent with the video of Louthian watching NH

walk from the ambulance to her home just a few months before his

grand jury appearance.

Blaming the vagueness of the prosecutor’s questions,

Louthian contends that his answers were the product of

confusion, rather than deception. Specifically, he argues, the

prosecutor failed to adequately define the word “transported” in

the question: “And you believe she was being transported in

that manner after that?” According to Louthian, if

“transported” referred only to the time that NH was in the

ambulance, then the prosecution failed to prove that his

response was false. See United States v. Hairston, 46 F.3d 361,

376 (4th Cir. 1995) (vacating perjury conviction when, despite

multiple potential meanings, defendant’s answer to grand jury

inquiry was literally true).

But the Hairston decision does not stand for the

proposition that we must vacate a perjury conviction whenever a

perjurer, on appeal, can stir up some potential ambiguity in a

grand jury’s inquiries. As Judge Motz recently explained,

Hairston was predicated on the unique circumstance that the

21

allegedly false statement had an “obvious,” non-perjurious

meaning. See United States v. Sarwari, 669 F.3d 401, 406 (4th

Cir. 2012). It does not apply in a situation — such as this —

where “the focus is on the ambiguity of the question asked.”

Id. (internal quotation marks omitted).

Thus, although Louthian’s lack-of-evidence theory on the

perjury offense was appropriate for the jury’s consideration, it

is, as an appellate challenge to evidence sufficiency, without

substance. The jury was permitted to conclude, given the

context of the prosecutor’s questions and the nature of the

allegations against Louthian, that, consistent with the

government’s characterization, he understood the question and

lied to avoid criminal liability. It would be inappropriate for

us to second-guess the verdict in that regard. Therefore, we

will not disturb Louthian’s perjury conviction.

C.

Next, we examine de novo Louthian’s contention that the

district court erred in denying his post-trial request for

acquittal or a new trial based on inconsistent verdicts. See

United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010).

Relying on the Supreme Court’s decision in New York Central &

Hudson Railroad v. United States for the proposition that a

corporation — like the Squad — is criminally liable for

unlawful acts committed by its agent in the scope of his

22

employment, Louthian maintains that it was legally and logically

inconsistent for the jury to convict him of the health care

offenses while acquitting his codefendant, the Squad itself.

See 212 U.S. 481 (1909).

Put simply, Louthian’s inconsistent-verdicts argument is

baseless. First, as the government points out, there are a

number of reasonable explanations for the verdicts. For

example, the jury may not have believed that Louthian was acting

for the benefit of the Squad or within the scope of his

employment. In either event, the verdicts would not be

inconsistent.

More importantly, however, it is well-settled that a

defendant “cannot challenge his conviction merely because it is

inconsistent with a jury’s verdict of acquittal on another

count.” See United States v. Thomas, 900 F.2d 37, 40 (4th Cir.

1990) (citing United States v. Powell, 469 U.S. 57 (1984)).

Indeed, an inconsistent verdict can result from mistake,

compromise, or lenity, and a jury could just as likely err in

acquitting as in convicting. In any event, it can never be

known “whose ox has been gored.” See Powell, 469 U.S. at 65.

“Given this uncertainty, and the fact that the Government is

precluded from challenging the acquittal, it is hardly

23

satisfactory to allow the defendant to receive a new trial as a

matter of course.” Id. 9

Louthian acknowledges the foregoing, but asks that we

“carve out an exception to [the Supreme Court’s] rigid and

unworkable rule.” Br. of Appellant 19. Having neither the

authority nor the inclination to do so, we decline to intrude

upon the verdicts. 10

D.

Louthian also challenges his below-Guidelines sentence of

forty-eight months as being excessive, in view of his age, poor

health, and lack of a criminal history. For those reasons, he

argues, the district court ought to have departed downward. We

are unable, however, to review a sentencing court’s decision not

9

The rule against disturbing an inconsistent verdict has

been steadfastly followed for more than eighty years. In Dunn

v. United States, the Supreme Court held that a defendant could

be convicted of keeping intoxicating liquor for sale even though

the jury also found him not guilty of unlawful possession of

intoxicating liquor. See 284 U.S. 390 (1932). The Court

explained that “consistency in the verdict is not necessary.”

Id. at 393. More recently, in United States v. Collins, we

declined to overturn a conspiracy conviction when the

defendant’s only coconspirator was acquitted of the same charge.

See 412 F.3d 515, 519-20 (4th Cir. 2005) (“The law is

established on this point . . . that a defendant is not entitled

to a new trial when the jury reaches an inconsistent verdict.”).

10

Louthian also pursues, as a subpart of his inconsistent-

verdicts contention, the proposition that his acquittal on the

money laundering charges (Counts Seven and Eight) undermines the

guilty verdict on the six health care offenses. We reject that

contention as well.

24

to depart unless the court mistakenly believed that it lacked

the authority to do so. See United States v. Brewer, 520 F.3d

367, 371 (4th Cir. 2008). Before pronouncing sentence, the

court recognized its obligation to “consider any applicable

departure policy statements by the Sentencing Commission.” J.A.

1056. The court then considered Louthian’s request for a

downward departure under the Guidelines, but concluded that none

was appropriate. Because the court understood its authority,

but declined to exercise it on the facts of this case, Louthian

cannot contest on appeal the court’s failure to depart downward.

To the extent that Louthian challenges his sentence as

otherwise unreasonable, we are unmoved. We review a court’s

sentencing decisions for abuse of discretion only. See Gall v.

United States, 552 U.S. 38, 49-51 (2007). Any sentence that is

within or below a properly calculated Guidelines range is

presumptively reasonable. See United States v. Abu Ali, 528

F.3d 210, 261 (4th Cir. 2008). Such a presumption can only be

rebutted by showing that the sentence is unreasonable when

measured against the 18 U.S.C. § 3553(a) factors. See United

States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).

Louthian makes no assertion that his forty-eight-month

sentence was tainted by procedural flaws, such as errors in

calculating the Guidelines range, erroneously treating the

Guidelines as mandatory, failing to properly consider the

25

§ 3553(a) factors, predicating the sentence on clearly erroneous

facts, or failing to adequately explain the sentence. See Gall,

552 U.S. at 51. Meanwhile, we cannot conclude that his sentence

was substantively unreasonable. See United States v. Mendoza-

Mendoza, 597 F.3d 212, 216 (4th Cir. 2012). We observe that,

although the court denied Louthian’s request for a departure on

account of age, health, and criminal history, it varied downward

for those very reasons, imposing an aggregate sentence (48

months) that is less than half the low end of his Guidelines

range (121 months). Louthian’s sentence therefore cannot be

deemed unreasonable. 11

E.

Finally, Louthian contends that he was unfairly prejudiced

when the prosecutors “chose to pursue” a criminal forfeiture

against him after his trial. Br. of Appellant 26. Instead,

Louthian maintains, the prosecution should have initiated a

11

In conjunction with his sentencing challenge, Louthian

also complains that his forty-eight-month sentence will have a

“chilling effect” on others in the health care industry. Br. of

Appellant 25. We are satisfied that this was probably the

United States Attorney’s intention, and that the Department of

Justice will be pleased if this prosecution serves to forestall

other health care fraud schemes. As the district court properly

emphasized, “deterrence is an important factor in determining an

appropriate sentence in this case,” because “without an

appropriate sentence of incarceration, other people might well

believe that it is worth a chance to engage in medical billing

fraud.” J.A. 1060-61.

26

civil forfeiture action against him and the Squad, so that he

could have lodged a cross-claim against the Squad for state-law

indemnity. 12 As the government responds, however, a criminal

forfeiture of tainted assets in a health care fraud proceeding

is mandatory. See 18 U.S.C. § 982(a)(7) (“[T]he court . . .

shall order the person to forfeit property, real or personal,

that constitutes, or is derived, directly or indirectly, from

gross proceeds traceable to the commission of the offense.”

(emphasis added)). In this situation, it is apparent that the

prosecution and the court adhered to the applicable procedures.

The grand jury properly alleged the intention of the government

to seek a criminal forfeiture. See Fed. R. Crim. P. 32.2(a).

Following the verdict, the prosecution requested a preliminary

order of forfeiture, and the court conducted an appropriate

hearing. See Fed. R. Crim. P. 32.2(b)(1)(A)-(B). The court

then entered its preliminary forfeiture order, which was

subsequently incorporated into the criminal judgment. See Fed.

R. Crim. P. 32.2(b)(4)(B)-(C). Accordingly, despite Louthian’s

12

Civil and criminal forfeiture are distinct enforcement

tools available to federal prosecutors. Whereas a criminal

forfeiture is an in personam action that requires a conviction,

civil forfeiture is an in rem action against the property

itself. The two types of forfeiture are not, in most instances,

mutually exclusive, and the choice of which type to pursue is

often a tactical one committed to the sound discretion of the

United States Attorney.

27

expressed preferences, there is no basis for concluding that the

court erred with respect to the forfeiture proceedings.

III.

Pursuant to the foregoing, we affirm the judgment of the

district court.

AFFIRMED

28