noting that “summaries admitted under [Rule 1006] are evidence themselves”
How later courts described this case
- noting that “summaries admitted under [Rule 1006] are evidence themselves”
- first quoting United States v. Bowie, 232 F.3d 923, 927 (D.C. Cir. 2000), and then FED. R. EVID. 404(b)(1)
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 7, 2022 Decided July 15, 2022
No. 21-3036
UNITED STATES OF AMERICA,
APPELLEE
v.
TAREK ABOU-KHATWA, ALSO KNOWN AS DEAN ADDEM,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cr-00067-1)
William E. Zapf argued the cause for appellant. With him
on the briefs was Jonathan S. Jeffress.
Finnuala K. Tessier, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee. Jeremy R.
Sanders, Trial Attorney, entered an appearance.
Before: SRINIVASAN, Chief Judge, MILLETT and WILKINS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
2
MILLETT, Circuit Judge: Tarek Abou-Khatwa challenges
his convictions for health care fraud, false statements relating
to health care matters, mail fraud, wire fraud, and identity theft.
Abou-Khatwa connected small businesses and non-profits with
health care plans offered by CareFirst Blue Cross Blue Shield
(“CareFirst”), a health insurance company. A jury found that
Abou-Khatwa falsified information about those businesses and
their employees to artificially lower the health insurance
premiums CareFirst charged. He then directed his clients to
pay higher premiums than CareFirst was charging and
pocketed the difference.
Abou-Khatwa seeks the dismissal of most of the counts of
his indictment and a new trial on the remaining counts. In his
view, the indictment failed to allege a convergence between the
deceived entity, CareFirst, and those deprived of property—
which, in Abou-Khatwa’s view, were his clients. In other
words, he claims that the indictment did not allege that he
defrauded CareFirst of any of its own property. He argues
instead that the indictment and trial improperly relied on
evidence that he defrauded his small business clients by
overcharging them for health insurance premiums. He also
brings a number of evidentiary challenges.
There is no convergence problem in this case. The
indictment alleged that Abou-Khatwa defrauded CareFirst,
causing it to lose money. That is the same fraud that the
government proved at trial. The differential between the
falsely lowered premiums that Abou-Khatwa tricked CareFirst
into charging and those he billed his clients represented, at least
in part, property fraudulently taken from CareFirst. That price
difference also helped to show Abou-Khatwa’s profit motive
for the fraud, and demonstrated that he was neither acting as a
Robin Hood nor at the behest of his clients to help reduce their
3
premiums. None of Abou-Khatwa’s other challenges on
appeal succeed, so we affirm the district court’s judgment.
I
A
Abou-Khatwa was the Chief Executive Officer and
founder of a firm named Benefits Consulting Associates.
Through that business, he sold CareFirst insurance to a number
of small businesses.1
Leveraging his knowledge of CareFirst’s procedures and
requirements, Abou-Khatwa manipulated his clients’
information—such as the number of people they employed and
individual employees’ identities, ages, and occupations—to
obtain lower insurance premiums from CareFirst. Of these
factors, age was the single most important factor CareFirst used
in setting insurance premiums. Abou-Khatwa made the
average age of employees look lower by altering the birthdates
of individual employees, adding fake, younger employees to
employee rosters, and falsely listing employees as affiliated
with different employers or with shell entities he created so as
to alter the age balance of employee groups. In addition, he
misused the names and Social Security numbers of former
clients to pad company rosters with seemingly younger
members.
Abou-Khatwa also knew that once CareFirst establishes a
business’s insurance rate, it remains locked-in for the entire
1
We consider the evidence in the record in the light most
favorable to the verdict. Tibbs v. Florida, 457 U.S. 31, 38 n.11
(1982); United States v. Campbell, 702 F.2d 262, 264 (D.C. Cir.
1983); see United States v. Shabban, 612 F.3d 693, 696 (D.C. Cir.
2010).
4
year, regardless of the addition or subtraction of any new
members. Every subsequent year, CareFirst recalculates the
insurance rate during its annual renewal process.
Approximately 60–75 days prior to the renewal date, CareFirst
reviews the group’s current enrollment data and calculates the
average age as of that date. The rate is updated for the next
annual cycle to reflect the new group size and average age of
members.
Aware of CareFirst’s practices, Abou-Khatwa amended
employee rosters 90 days prior to the insurance renewal date to
ensure that CareFirst used the false employee information in
setting the next year’s premium. Then, after rates were locked
in for the year, he would go back and scrub some of the false
employee information from the records.
In the process of procuring unwarrantedly low insurance
plans for his clients, Abou-Khatwa violated many of
CareFirst’s specific requirements for the sale of insurance to
small companies. For example, CareFirst does not allow
employees of multiple small companies to be insured under one
group. In addition, CareFirst requires that at least 75% of a
company’s employees eligible for medical coverage enroll so
that there is a mix of “young and healthy” as well as “older and
sick people” in the insured group. Trial Tr. 490:18–19 (Oct.
29, 2019), Government’s Supplemental Appendix (“GSA”)
618. CareFirst informed brokers of these rules for rate-setting,
and Abou-Khatwa falsified his way around them.
Abou-Khatwa spelled out his scheme in detailed,
handwritten notes found in his home and office. For example,
Abou-Khatwa made a note to himself to “[m]ake sure the
[employee] census is modified prior to 90 days.” Gov’t Ex.
23, GSA 1945. The notes also explain that his process during
the renewal period included “modify[ing] [dates of birth] [t]o
5
bring [the] average age below 35[.]” Gov’t Ex. 20, GSA 1939.
He elaborated in his notes that, during the renewal period, he
could also “add[] DUMIES”—dummies—as extra “young
members” of a group. Gov’t Ex. 29, GSA 1954.
As an “EXAMPLE” of his strategy, Abou-Khatwa’s notes
explained that if an insurance plan had a January renewal, he
had to “[a]dd dummies the first week of Sept[ember,]” and
make October 1st the “effective date” of employment for those
“dummies[.]” Gov’t Ex. 29, GSA 1954 (some emphases
omitted). He noted that he should “[k]eep them in the Group
[for] []45 days * * * which [would] be till Nov[ember] 15th[.]”
Gov’t Ex. 29, GSA 1954. On that date, he planned to
“terminate them retro (45 days) Sept. 31st effectively creating
a WASH[.]” Gov’t Ex. 29, GSA 1954. He also kept a “2013
Master Subscriber List” that consisted of tables and documents
showing clients’ real employers as well as their falsified
assignment to the entity used to group them for insurance
purposes. Trial Tr. 1014:16 (Nov. 1, 2019), GSA 1142; Gov’t
Ex. 58, GSA 1961–1975.
By “lower[ing] [the] average age” in that way, Abou-
Khatwa’s notes documented that he could achieve a “maximum
return” on his fraud. Gov’t Ex. 22, GSA 1942 (emphases
omitted). Abou-Khatwa then turned around and offered his
clients higher (but still competitive) rates for their health
insurance premiums than CareFirst charged, lining his own
pockets with the difference. Over three and a half years,
Abou-Khatwa accumulated for himself millions in fraudulently
obtained funds.2
2
The FBI acquired some of these notes, along with other
evidence in the case, by executing a search warrant on Abou-
Khatwa’s home in an affluent neighborhood of Washington, D.C.
6
B
A federal grand jury indicted Abou-Khatwa on 24 counts,
covering health care fraud in violation of 18 U.S.C. § 1347,
making false statements related to health care matters in
violation of 18 U.S.C. § 1035(a)(2), mail fraud in violation of
18 U.S.C. § 1341, wire fraud in violation of 18 U.S.C. § 1343,
and identity theft in the first degree in violation of 22 D.C.
Code §§ 3227.02(1) and 3227.03(a).
The sole health care fraud count—Count 1—charged
Abou-Khatwa with “knowingly, willfully, and with intent to
defraud, execut[ing] a scheme and artifice: (a) to defraud a
health care benefit program, * * * namely CareFirst, * * * and
(b) to obtain money from CareFirst by means of materially
false and fraudulent pretenses and representations and the
concealment of material facts[.]” Joint Appendix (“J.A.”) 4.
The indictment detailed that Abou-Khatwa “unlawfully
enrich[ed] himself by creating fake groups of insured
individuals, which included both fictitious names and real
people with altered years of birth, to fraudulently obtain lower
insurance premium quotes from CareFirst[.]” J.A. 4.
“[O]nce the premium rates were set, [Abou-Khatwa] had the
One of the FBI agents who executed the search warrant testified that,
after knocking on the front door three or more times without answer,
“[t]he decision was made, since it was an affluent neighborhood, we
knew we had to make a forcible entry at that point, but due to the
aesthetics of the neighborhood, we decided to use a rear entrance so
as to maintain the integrity of the front of the residence.” GSA 438–
439. This apparent disparate treatment of wealthy and poorer
residents raises serious concerns about the fair and evenhanded
administration of justice by the FBI. We appreciate counsel for the
government’s recognition of the problem and her promise to raise the
matter with her superiors.
7
CareFirst invoices sent directly to him instead of his clients,
marked up the insurance premiums charged by CareFirst, and
pocketed the difference between the two.” J.A. 4. “Through
this scheme, [Abou-Khatwa] fraudulently siphoned off in
excess of $2 million in illegal proceeds, and diverted the
proceeds of the fraud for his personal use and benefit.” J.A. 4.
The mail fraud counts—Counts 5 through 12—and wire
fraud counts—Counts 13 through 18—each alleged that
“Abou-Khatwa[] devised and intended to devise a scheme to
defraud CareFirst[.]” J.A. 8–9. Each count is associated with
a particular date in 2013 and a specific mailing or wire
communication made for the purpose of executing or
attempting to execute his scheme.
The counts charging Abou-Khatwa with false statements
related to health care matters—Counts 2 through 4—and
identity theft—Counts 19 through 24—are tied to particular
dates and people or entities whom Abou-Khatwa used as part
of his scheme, either by using their name or social security
number without permission or by making a false statement
about them.
In November 2019, a jury found Abou-Khatwa guilty on
all counts.3 The district court subsequently sentenced Abou-
Khatwa to 70 months in prison and 36 months of supervised
release. The district court also ordered him to pay
$3,836,709.34 in restitution to CareFirst.
3
Following closing arguments, the district court entered a
judgment of acquittal on Counts 12 (mail fraud) and 21 (identity
theft), so they were not submitted to the jury.
8
II
The district court exercised jurisdiction under 18 U.S.C.
§ 3231, and this court has appellate jurisdiction under 28
U.S.C. § 1291.
III
Abou-Khatwa raises five challenges on appeal. First, he
contends that the fraud charges in the indictment should have
been dismissed because they failed to conform to the doctrine
of convergence. Second, he argues that the district court
improperly introduced evidence of uncharged crimes during
his trial, namely evidence suggesting that Abou-Khatwa
defrauded his own clients. Third, Abou-Khatwa maintains
that the district court erred in admitting evidence of conduct
that occurred before the statute of limitations period. Fourth,
he claims that the government’s summary witnesses exceeded
the scope of allowable testimony. And fifth, he argues that the
cumulative effect of all those errors requires a reversal of his
conviction.
Because the law and the record in this case foreclose those
objections, we affirm the judgment of the district court.
A
Abou-Khatwa argues that the health care fraud, mail fraud,
and wire fraud counts in his indictment must be dismissed
because they violate the rule of “convergence.” Abou-Khatwa
Opening Br. 31–33. Convergence is a legal theory that “the
party who is deceived must be the same as the party that is
defrauded of money or property[.]” United States v. Seidling,
737 F.3d 1155, 1160 (7th Cir. 2013). In Abou-Khatwa’s view,
the fraud counts of the indictment alleged that while he
“defrauded CareFirst by falsely identifying employers,
9
employees, dates of birth, and ages, the money and property
that was alleged to have been obtained by Mr. Abou-Khatwa
was that of the clients, not CareFirst.” Abou-Khatwa Opening
Br. 37. His argument is narrowly focused on the adequacy of
the indictment and does not extend to the sufficiency of proof
at trial or the adequacy of jury instructions. Abou-Khatwa
Reply Br. 13; Oral Arg. Tr. 8–9.
Because Abou-Khatwa properly raised this objection to his
indictment for mail fraud (specifically Counts 5–7, 9–12) and
wire fraud (Counts 13–18) before the district court, we review
de novo the legal question of whether the indictment
sufficiently alleged convergence. See United States v.
Verrusio, 762 F.3d 1, 13 (D.C. Cir. 2014). For the first time,
Abou-Khatwa now argues that his indictment for health care
fraud (Count 1) and for mail fraud (Count 8) also violate the
convergence rule. We review those challenges for plain error.
See United States v. Walker, 545 F.3d 1081, 1086–1087 (D.C.
Cir. 2008); see also Abou-Khatwa Opening Br. 38–39
(conceding Counts 1 and 8 were not challenged in his motion
to dismiss). Under that standard, we reverse only if the
defendant establishes that (i) there was an error, (ii) that was
plain, (iii) affected Abou-Khatwa’s substantial rights, and (iv)
“had a serious effect on ‘the fairness, integrity or public
reputation of judicial proceedings.’” Greer v. United States,
141 S. Ct. 2090, 2096–2097 (2021) (quoting United States v.
Olano, 507 U.S. 725, 736–737 (1993)); accord United States
v. Bostick, 791 F.3d 127, 143–144 (D.C. Cir. 2015).
1
Other circuits are split on whether the statutes at issue
here—18 U.S.C. §§ 1341, 1343, 1347—require convergence.
Compare, e.g., Seidling, 737 F.3d at 1161 (“[T]his Court does
not interpret the mail fraud statute as requiring convergence
10
between the misrepresentations and the defrauded victims.”),
with, e.g., United States v. Lew, 875 F.2d 219, 221 (9th Cir.
1989) (interpreting Supreme Court precedent as “ma[king] it
clear that the intent must be to obtain money or property from
the one who is deceived”).4 Because the indictment properly
alleges convergence, we assume without deciding that these
statutes require convergence.
2
We agree with the district court that the indictment
properly alleged convergence as to the mail fraud counts.
We begin with the plain language of the indictment to
ensure “first, [that it] contains the elements of the offense
charged and fairly informs a defendant of the charge against
which he must defend, and, second, [that it] enables him to
plead an acquittal or conviction in bar of future prosecutions
for the same offense.” United States v. Resendiz-Ponce, 549
U.S. 102, 108 (2007); accord United States v. Hitt, 249 F.3d
1010, 1016 (D.C. Cir. 2001); see also id. (“Adherence to the
language of the indictment is essential because the Fifth
Amendment requires that criminal prosecutions be limited to
4
See also United States v. Christopher, 142 F.3d 46, 54 (1st
Cir. 1998) (“Nothing in the mail and wire fraud statutes requires that
the party deprived of money or property be the same party who is
actually deceived.”); United States v. Pepper, 51 F.3d 469, 473 (5th
Cir. 1995) (“There is no statutory requirement [in 18 U.S.C. § 1341]
that direct misrepresentation must be made to the victims of the
scheme.”); United States v. Kennedy, 64 F.3d 1465, 1475–1476 (10th
Cir. 1995) (concluding that the “plain language” of 18 U.S.C. § 1341
indicated that “it was ‘neither necessary to allege nor prove that false
pretenses, representations, or promises were actually made’ to
anyone, much less to each individual in the distinct mail fraud
counts”) (citation omitted).
11
the unique allegations of the indictments returned by the grand
jury.”). The indictment need only contain “a plain, concise,
and definite written statement of the essential facts constituting
the offense charged[.]” FED. R. CRIM. P. 7(c)(1); see also
United States v. Ballestas, 795 F.3d 138, 148–149 (D.C. Cir.
2015).
The indictment in this case met that standard by adequately
alleging that Abou-Khatwa both targeted CareFirst with his
fraudulent representations and deprived CareFirst of its
property through the fraud.
To start, the indictment’s plain terms identify CareFirst as
the victim of Abou-Khatwa’s mail fraud. It says that Abou-
Khatwa “devised and intended to devise a scheme to defraud
CareFirst.” J.A. 8. The indictment further specifies that
Abou-Khatwa aimed “to obtain money and property by means
of materially false and fraudulent pretenses, representations,
and promises, from CareFirst.” J.A. 8. The indictment
explains that the property Abou-Khatwa obtained was the price
difference between the lower “health insurance premiums” that
Abou-Khatwa tricked CareFirst into charging and the “higher,”
roughly market rates that Abou-Khatwa charged his clients.
J.A. 8. Without Abou-Khatwa’s fraud, CareFirst would have
charged and received higher, market rates.
The indictment elaborates that “by creating fake groups of
insured individuals, which included both fictitious names and
real people with altered years of birth,” Abou-Khatwa
“fraudulently obtain[ed] lower insurance premium quotes from
CareFirst,” and “once the premium rates were set, [Abou-
Khatwa] had the CareFirst invoices sent directly to him instead
of his clients, marked up the insurance premiums charged by
CareFirst, and pocketed the difference between the two.” J.A.
4. “Through this scheme,” the indictment charges, Abou-
12
Khatwa “fraudulently siphoned off in excess of $2 million in
illegal proceeds, and diverted the proceeds of the fraud for”
himself. J.A. 4.
Abou-Khatwa argues that the delta described in the
indictment between the premiums fraudulently obtained from
CareFirst and the price Abou-Khatwa charged his clients is
actually the property of his clients, not CareFirst. Abou-
Khatwa Reply Br. 10.
That is incorrect. Abou-Khatwa’s clients have no legal
right to fraudulently “lower premium[s] from CareFirst than
would have been obtained using accurate information.” J.A.
6. As a result, some portion of the difference between what
Abou-Khatwa paid CareFirst for those premiums and the
“marked up” amount he charged his clients belonged to
CareFirst, representing the additional amount CareFirst would
have charged and received had the premiums been calculated
based on accurate data. J.A. 6. It is that portion of the delta
that constitutes the property of CareFirst and establishes that
the indictment sufficiently alleged convergence for all of the
mail fraud counts.
3
For those same reasons, there is no error in the
indictment’s allegations of convergence for the wire fraud
counts, and certainly no plain error in the indictment’s
allegations of convergence for the health care fraud count.
The indictment alleges, for all of these counts, the same
fraudulent scheme, victim, and property wrongfully taken in
the form of the gap between the rates fraudulently charged and
what would have been charged and received by CareFirst
absent Abou-Khatwa’s fraudulent representations.
13
B
Abou-Khatwa also objects that the district court permitted
the government to introduce evidence of “putative fraud
against Mr. Abou-Khatwa’s clients,” in violation of Federal
Rule of Evidence 404(b)’s limitations on the admission of
evidence of uncharged wrongful conduct. Abou-Khatwa
Opening Br. 40. Abou-Khatwa reasons that he was
“effectively tried for two very different fraudulent schemes:
one for defrauding CareFirst and the second for defrauding his
clients” by “overcharg[ing]” them “when he allegedly ‘marked
up’ the premiums charged by CareFirst[.]” Abou-Khatwa
Opening Br. 44, 46. In his view, the government failed to
introduce evidence “of any link between the amounts CareFirst
would have charged but for Mr. Abou-Khatwa’s alleged
deception, and the amounts Mr. Abou-Khatwa charged his
clients.” Abou-Khatwa Opening Br. 46.
Abou-Khatwa adds that the district court erred by (i)
admitting the evidence because it was more prejudicial than
probative, in violation of Federal Rule of Evidence 403, and
(ii) refusing to give Abou-Khatwa’s proposed jury instruction
to limit potential prejudice.
We review the district court’s evidentiary decisions for an
abuse of discretion. United States v. Grey, 891 F.3d 1054,
1060 (D.C. Cir. 2018). None of Abou-Khatwa’s objections
satisfy that standard.
1
Federal Rule of Evidence 404(b) provides that “[e]vidence
of any other crime, wrong, or act is not admissible to prove a
person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” FED. R.
14
EVID. 404(b)(1). At the same time, the Rule expressly
“permit[s]” the admission of such evidence “for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” FED. R. EVID. 404(b)(2) (formatting
modified).
Of course, “[e]vidence that constitutes the very crime
being prosecuted[,]” United States v. Bowie, 232 F.3d 923, 927
(D.C. Cir. 2000), by definition is not barred by Rule 404(b)
because it is not evidence of “any other crime,” FED. R. EVID.
404(b)(1) (emphasis added). It follows that “[a]cts ‘extrinsic’
to the crime charged are subject to Rule 404(b)’s limitations;
acts ‘intrinsic’ to the crime are not.” United States v. McGill,
815 F.3d 846, 879 (D.C. Cir. 2016) (per curiam). And “if the
evidence is of an act that is part of the charged offense, it is
properly considered intrinsic.” Bowie, 232 F.3d at 929. “In
addition, some uncharged acts performed contemporaneously
with the charged crime may be termed intrinsic if they facilitate
the commission of the charged crime.” Id.
The evidence to which Abou-Khatwa objects was both
intrinsic to the charged fraud against CareFirst, and admissible
for enumerated Rule 404(b) purposes.
Evidence about the difference between the rate CareFirst
was misled into charging and the rate Abou-Khatwa charged
his clients was intrinsic to the fraud counts themselves because
it showed that he executed or attempted to execute a scheme to
obtain money or property from CareFirst. Even if the
government did not prove the exact amount purloined from
CareFirst, the record allowed a reasonable jury to find that
some portion of the difference between what CareFirst charged
and Abou-Khatwa charged necessarily included property
obtained from CareFirst. That is because the existence of that
15
monetary differential was only possible by falsely obtaining
lower premiums from CareFirst through deliberately
misleading data—data without which CareFirst would have
charged and received higher premiums. The fact that there
was a significant divergence—approximately $561,000 in just
the last three quarters of 2013—makes it more likely that the
inaccurate information Abou-Khatwa fed to CareFirst
materially changed the price of its premiums. Client
testimony that the rates Abou-Khatwa charged them seemed to
be in line with market rates further indicates that the price
differential came largely or wholly at the expense of CareFirst.
Importantly, Abou-Khatwa does not contest on appeal the
sufficiency of the evidence that his machinations caused
CareFirst to charge lower premiums than it otherwise would
have. Nor could he have. Testimony given by a CareFirst
employee indicated both that “average age [wa]s the most
important factor” in determining insurance premiums, and
confirmed that there was “a difference or a delta between what
* * * would have been the actual rates had CareFirst received
accurate information and the rates that were actually obtained
in this case.” Trial Tr. 503:12, 530:15–18 (Oct. 30, 2019),
GSA 631, 658.
While Abou-Khatwa objects that the precise difference in
rates charged was never proven, evidence before the jury
showed that CareFirst could not calculate the exact differential
without untangling all of the individualized misinformation fed
by Abou-Khatwa into CareFirst’s records. Yet only Abou-
Khatwa knew every individual misrepresentation or
misgrouping of employees that occurred. As a CareFirst
employee testified, “[w]e don’t know what the true factual
information was,” and CareFirst could not recreate that
information without undertaking the unwieldy task of “mailing
every employer group all the enrollment [information]” for
16
correction and verification. Trial Tr. 533:5–7 (Oct. 29, 2019),
GSA 661.
Notably, before the jury, the defense argued strenuously
that the government’s failure to prove precisely what the
insurance rates would have been had CareFirst received
accurate information was material to whether the government
met its burden of proof. In addition, the defense successfully
introduced a jury instruction that specifically advised the jury
of the defense’s theory “that the difference between the
premiums extended to Benefits Consulting Associates’ clients
and the premiums that would have been extended had CareFirst
been given accurate information was not material to CareFirst.”
Trial Tr. 1701:24–25, 1702:1–2 (Nov. 7, 2019), GSA 1829–
1830.
The jury weighed the evidence and rejected Abou-
Khatwa’s arguments, finding that Abou-Khatwa made
“materially false or fraudulent” representations to CareFirst
that had the “natural tendency to influence” and were “capable
of influencing” CareFirst to materially lower their premiums.
Trial Tr. 1707:8–1708:12 (Nov. 7, 2019), GSA 1835–1836.
Beyond all that, even assuming that some portion of that
rate delta represents money obtained from Abou-Khatwa’s
clients in excess of what CareFirst would have charged if given
accurate information, his Rule 404(b) claim would still fail.
To begin with, that amount would likely still qualify as intrinsic
evidence, outside of Rule 404(b)’s scope, because it constitutes
“uncharged acts performed contemporaneously with the
charged crime,” and the very act of charging clients for
premiums “facilitate[d] the commission of the charged crime.”
Bowie, 232 F.3d at 929. The most that the record would show
is that Abou-Khatwa’s individual acts of charging his clients
17
higher premiums enabled him to take money from both
CareFirst and his clients.
In any event, even if the evidence were extrinsic to the
fraud, it would have been properly admitted. Rule 404(b)
allows the admission of evidence of other crimes, wrongs, or
acts to prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
The evidence that Abou-Khatwa charged his clients
significantly more than the premiums that CareFirst charged
based on false information makes it more likely both that he
gave CareFirst false information intentionally, and that he did
not make a mistake when submitting incorrect dates of births
or falsified employee rosters to CareFirst. The significant gap
between CareFirst’s lower premiums and Abou-Khatwa’s
charges to his clients also provides a profit motive for giving
CareFirst false information. Plus, the evidence tends “to show
the existence of ‘a common scheme or plan’” uniting all of the
instances of manipulated filings and “‘embracing the
commission of two or more crimes so related to each other that
proof of the one tends to establish the other.’” United States
v. Burkley, 591 F.2d 903, 920 (D.C. Cir. 1978) (citation
omitted). Those are all permissible uses of other-acts
evidence under Rule 404(b).
So whether the evidence of potential client overcharges is
intrinsic or extrinsic to the fraud against CareFirst, the district
court properly exercised its discretion to admit the evidence
under Rule 404(b).
2
Abou-Khatwa’s second tack is to argue that admission of
evidence that his clients were overcharged violated Federal
Rule of Evidence 403. That Rule provides that the district
18
court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” FED. R. EVID. 403. Evidence
admissible under Rule 404(b) may still be prohibited under
Rule 403’s balancing of prejudice and probativeness. See
McGill, 815 F.3d at 880.
The district court here properly balanced the competing
concerns and acted within its discretion in admitting the
evidence.
The district court recognized the potentially prejudicial
nature of evidence pointing to possible client overcharges. It
acknowledged that “the jury is much more likely to be
sympathetic to small nonprofits and individuals, and so on,
who are paying more for health insurance than they need to—
than they are going to be to CareFirst[.]” Pretrial Conference
Tr. 43:12–16 (Oct. 15, 2019), J.A. 189. To counter that
concern, it barred the government from arguing that Abou-
Khatwa “cheated” his clients. Pretrial Conference Tr. 37:25
(Oct. 15, 2019), J.A. 186. At the same time, it allowed the
government “to put the facts before the jury that, as part of the
scheme” against CareFirst, there was a delta between the lower
premiums and client charges. Pretrial Conference Tr. 37:19–
21 (Oct. 15, 2019), J.A. 186. As the district court explained
“there has to necessarily be a delta” for the scheme to work,
and it properly allowed the government to prove “how we got
to that delta.” Pretrial Conference Tr. 37:19–21 (Oct. 15,
2019), J.A. 186.
By prohibiting the government from arguing that Abou-
Khatwa’s clients were harmed, the district court struck an
appropriate balance between the government’s need to prove
19
the loss to CareFirst against the potential for prejudicial jury
sympathy for Abou-Khatwa’s clients.
Abou-Khatwa responds by pointing to the personal
interests voiced by a juror that led to that juror being excused
from the trial. After opening arguments, Juror Number 6
submitted a rather cryptic note to the district court judge
saying: “I have CareFirst.” Trial Tr. 213:25 (Oct. 28, 2019),
J.A. 442. When called to the bench to speak with the trial
judge, he explained that “[h]earing the opening statements
yesterday, one of my questions in my head was, okay, would
my premiums have been less if I had someone—my broker
doing this? Would my premiums be less? And there’s a
question.” Trial Tr. 229:4–7 (Oct. 29, 2019), J.A. 443. The
district court granted Abou-Khatwa’s motion to excuse the
individual from the jury. The court explained that the juror
had revealed his inability to be impartial because, as a small
business owner who used brokers to obtain CareFirst
insurance, he was similar to Abou-Khatwa’s clients.
Abou-Khatwa posits that the juror’s feelings reveal that
evidence about the divergence between the CareFirst premiums
and the client charges was in fact unduly prejudicial. Not at
all. As the district court persuasively explained, Juror Number
6 had unique circumstances that made him unable to be
impartial in this case, and he was promptly excused from the
jury. The court elaborated that “I think this is simply a
situation where the juror was like, oh, brokers, clients, yeah,
that’s me.” Trial Tr. 249:8–9 (Oct. 29, 2019), GSA 377; see
also GSA 370. Nor did anything in Juror 6’s comments
indicate a bias against Abou-Khatwa, rather than a desire to
obtain available discounts on his own business’s health
insurance.
20
Next, Abou-Khatwa argues that “the sheer volume and
inflammatory nature of this evidence overwhelmed the
evidence of the charged scheme itself.” Abou-Khatwa
Opening Br. 51. In particular, Abou-Khatwa challenges the
“testimony from a multitude of client witnesses[,]” “numerous
side-by-side comparisons of what those clients paid compared
to what Mr. Abou-Khatwa allegedly paid[,]” and vivid
summary charts and testimony of “the percentages by which
the premiums were marked up[.]” Abou-Khatwa Opening Br.
51–52.
Yet Abou-Khatwa does not point to any particular client
testimony that he or she was defrauded by having to pay higher
premiums than CareFirst would have charged if given truthful
information. Instead, clients testified that the rates they were
charged seemed reasonable and were competitive as compared
to other market rates. The client testimony also had critical
probative value, providing essential evidence that CareFirst
witnesses did not have about the true dates of birth, real names,
and work locations of the clients’ employees—that is, the
working details of the fraudulent scheme.
Abou-Khatwa’s challenge to the summary charts and
testimony illustrating the delta between what CareFirst charged
and what Abou-Khatwa collected overlooks that evidence of
some delta had to be introduced to prove that CareFirst was
defrauded of its own property. While there no doubt was
some repetitiveness in the side-by-side comparisons and
percentage mark-up charts, on the whole the district court did
not abuse its discretion in finding that the probative value of
the evidence outweighed its prejudice.
21
3
Abou-Khatwa next argues that the district court failed to
mitigate the prejudice of any client-fraud evidence through jury
instructions. Specifically, Abou-Khatwa asked the district
court to include, alongside its jury instruction explaining the
health care fraud count, language saying: “The alleged victim
in Count 1 is CareFirst. Mr. Abou-Khatwa is not charged with
defrauding his clients.” Trial Tr. 1584:4–5 (Nov. 7, 2019),
GSA 1712.
Because Abou-Khatwa’s proposal was not framed as an
explanation of the elements of the health care fraud count, the
district court instead used the following reworded instruction:
“[T]o find Mr. Abou-Khatwa guilty of health care fraud, the
jury must unanimously find that Mr. Abou-Khatwa engaged in
an affirmative act of health care fraud against CareFirst on at
least one occasion after March 20, 2013, but before December
31, 2013.” Trial Tr. 1707:1–5 (Nov. 7, 2019), GSA 1835.
Abou-Khatwa’s challenge boils down to a disagreement
over the wording chosen by the district court to tell the jury that
it could only convict Abou-Khatwa based on evidence of fraud
against CareFirst, rather than fraud against his clients. We
review “the choice of language to be used in a particular
instruction * * * only for abuse of discretion.” United States
v. Vega, 826 F.3d 514, 524 (D.C. Cir. 2016) (per curiam)
(citation omitted).
No such abuse occurred here. The district court’s
instruction communicated the same concern that Abou-Khatwa
wanted to convey—that the only relevant fraud was against
CareFirst. In addition, the district court gave another jury
instruction requested by Abou-Khatwa that helped clarify this
same point: “The defense contends that the difference
22
between the premiums extended to Benefits Consulting
Associates’ clients and the premiums that would have been
extended had CareFirst been given accurate information was
not material to CareFirst. The defense also contends that the
government has failed to prove that Mr. Abou-Khatwa
willfully engaged in any alleged scheme to defraud CareFirst.”
Trial Tr. 1701:24–1702:5 (Nov. 7, 2019), GSA 1829–1830.
While the district court did not adopt the exact words
advocated by Abou-Khatwa that he was “not charged with
defrauding his clients[,]” Trial Tr. 1584:5 (Nov. 7, 2019), GSA
1712, the district court’s jury instructions repeatedly focused
the jury on the relevant legal question, which was whether
Abou-Khatwa defrauded CareFirst.
C
Abou-Khatwa next challenges the admission of evidence
of events that occurred outside of the statute of limitations for
the health care fraud count. Specifically, he argues that
evidence preceding the limitations period was inadmissible
under Federal Rules of Evidence 404(b) and 403. Not so.
By way of background, the indictment charged Count 1 as
a single, continuing scheme of health care fraud, 18 U.S.C.
§ 1347, “[b]eginning in or about 2010, and continuing to in or
about 2013[.]” J.A. 4. The district court held, though, that
health care fraud is not a continuing offense, and so the five-
year general federal statute of limitations applied, see 18
U.S.C. § 3282. As a result, the district court considered all
evidence prior to March 20, 2013—the date five years before
the indictment—to be outside of the statute of limitations.
Nevertheless, the district court admitted the evidence as Rule
404(b) evidence and determined that its probative value was
23
not outweighed by undue prejudice for purposes of Rule 403.
The district court acted well within its discretion on both fronts.
1
Abou-Khatwa’s Rule 404(b) objections take two forms:
first as specific challenges to the testimony of two witnesses,
and second as a generalized challenge to pre-statute of
limitations evidence as a whole.
a
As for the witness challenges, Abou-Khatwa objects to the
testimony of a former client, Amy Kulp, and a former
employee, Fateen Moussa, about events occurring prior to
2013.
Kulp testified that while she was a Benefits Consulting
client, she “received a notice from CareFirst directly, wanting
[her] to confirm that individuals who were listed as employees
were in fact employed by [her] organization.” Trial Tr.
607:19–21 (Oct. 30, 2019), GSA 735. She then raised
inaccuracies in the employee information given to CareFirst
with Abou-Khatwa. She testified that in response to her
concerns, Abou-Khatwa “was very upset[,]” “was very stern
and angry, and he told me that I should not be having any direct
contact with CareFirst.” Trial Tr. 614:23–25 (Oct. 30, 2019),
GSA 742.
That testimony falls within Rule 404(b)’s compass.
Abou-Khatwa’s statements and demeanor made it more likely
that the inaccuracies in various documents in 2013 were part of
a scheme to defraud CareFirst and were intentional
fabrications, rather than innocent mistakes. Kulp’s testimony
24
also demonstrated Abou-Khatwa’s ability to deceive CareFirst
generally without his clients’ knowledge.
So too did the testimony of Fateen Moussa, who briefly
worked for Abou-Khatwa at Benefits Consulting in 2012. He
testified that he received a letter from CareFirst on June 27,
2012, about a compliance investigation. Moussa
“immediately” called Abou-Khatwa, who told him not to worry
about the letter and to “trash it.” Trial Tr. 1117:3–14 (Nov. 4,
2019), GSA 1245. A later email from Abou-Khatwa
instructed Moussa to tell CareFirst that his groups were all “self
administered.” Trial Tr. 1123:17–22 (Nov. 4, 2019), GSA
1251. Two days later, Abou-Khatwa emailed Moussa again
commenting that Moussa was “overreacting” because “[y]ou
can not apply the same principles that you were taught in
financial services to small group health insurance.” Trial Tr.
1136:1–5 (Nov. 4, 2019), GSA 1264. That testimony was
relevant to Abou-Khatwa’s knowledge of the
misrepresentations and to his deliberate state of mind when he
executed his scheme in 2013.
b
As for Abou-Khatwa’s global challenge to pre-limitations
period evidence, he argues that testimony “prior to the cutoff”
had “little or no connection to the period after the [statute of
limitations] cutoff.” Abou-Khatwa Opening Br. 55. That is
incorrect.
To start, client testimony, CareFirst business records, and
online records of the history of changes made to employee data
on CareFirst’s website established a consistent pattern and
scheme of manipulating client data in one common direction—
making client groups seem younger than they truly were. That
Abou-Khatwa, for years, repeatedly used the same individuals
25
as (in his own words) “dummies” with falsified information to
manipulate age and other insurance-relevant criteria was
pertinent evidence that the misstatements were not innocent
error.
In addition, although Abou-Khatwa challenges pre-2013
evidence that was admitted to prove the health care count
(Count 1), he does not challenge the admission of that same
evidence to prove Counts 2 through 24. Nor could he, as this
court has already held that the government may “rely on proof
of scheme activity in an otherwise time-barred period” as long
as there was “use of the mails or wires within the period[.]”
United States v. Howard, 350 F.3d 125, 127 (D.C. Cir. 2003).
But Abou-Khatwa fails to identify any pre-2013 evidence
that relates solely to the health care count. Neither can we
identify any pre-statute of limitations evidence bearing on his
health care fraud scheme that was not also relevant to the
“scheme to defraud” elements of the wire and mail fraud
counts. For example, merely demonstrating to the jury that
two clients, Khondker Shamsuzzoha and Rakesh Shah, were
listed with false birthdates on an employee census would not
itself prove mail or wire fraud. Client testimony was needed
to establish that Abou-Khatwa knew their true birthdates and
employer on the relevant dates. That evidence was rooted in
Abou-Khatwa’s conversations and interactions with clients
before the statute of limitations period.
Given that the evidence Abou-Khatwa challenges was
admissible for Counts 2 through 24, his challenge reduces to
one of prejudice. But the district court appropriately mitigated
any prejudice with an instruction cautioning the jury that the
evidence pertaining to each offense should be considered
separately. See United States v. Gooch, 665 F.3d 1318, 1336
(D.C. Cir. 2012).
26
In short, the district court did not abuse its discretion in
concluding that the pre-statute of limitations evidence admitted
to prove health care fraud was admissible under Rule 404(b) to
show intent, knowledge, or absence of mistake. In addition,
the same evidence would have been before the jury to establish
mail and wire fraud, and the district court gave appropriate jury
instructions to channel the jury’s consideration of the evidence
and to offset any prejudice.
2
Abou-Khatwa’s Rule 403 challenge meets the same fate.
He argues that the district court abused its discretion by
allowing “a steady stream of evidence relating to events outside
the statute of limitations with no systematic limiting principle”
such that the evidence was overly prejudicial. Abou-Khatwa
Opening Br. 56. But, as just noted, that evidence was highly
probative substantive evidence for the mail and wire fraud
counts and spoke directly to Abou-Khatwa’s state of mind,
plan, and absence of mistake as to the health care fraud count.
Nor was the evidence as repetitive as Abou-Khatwa portrays.
See supra Part III.B.1.
The evidence that was the most cumulative was
documentary evidence like invoices, history-of-changes logs of
employee information that were edited in the CareFirst system,
and summary exhibits. But that evidence demonstrated Abou-
Khatwa’s intentionality and common scheme of altering
employee information over time. The information also was
less prejudicial than Abou-Khatwa suggests because it was
clearly marked by date, and the summary exhibits in particular
were separated between pre- and post-statute of limitations
periods.
27
Beyond that, the district court mitigated any unfair
prejudice by specifically instructing the jury that the “evidence
of events occurring before March 20, 2013, was admitted for
its possible relevance to motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Trial Tr. 1706:22–25 (Nov. 7, 2019), GSA
1834. The district court then reemphasized that to find Abou-
Khatwa guilty on the health care fraud count, “the jury must
unanimously find that Mr. Abou-Khatwa engaged in an
affirmative act of health care fraud against CareFirst on at least
one occasion after March 20, 2013, but before December 31,
2013.” Trial Tr. 1707:1–5 (Nov. 7, 2019), GSA 1835. In that
way, the district court ensured that the jury’s verdict rested on
evidence of post-2013 health care fraud, separating out the pre-
2013 evidence that served as substantive evidence for other
counts in the indictment or that could only be considered for a
Rule 404(b)(2) purpose.
Abou-Khatwa objects that the jury instruction recited all
of the potential uses of Rule 404(b) evidence without
differentiating those relevant to the case, making it too broad
to constrain the jury. See Abou-Khatwa Opening Br. 57–58
(citing United States v. Merriweather, 78 F.3d 1070, 1076–
1077 (6th Cir. 1996)) (holding that jury instructions listing
seven Rule 404(b) purposes, many of which were plainly
inapplicable, was error). As Abou-Khatwa failed to raise that
objection before the district court, we review only for plain
error. See Abou-Khatwa Opening Br. 58. We find none.
We agree with Abou-Khatwa that, “[a]s a general rule,” a
Rule 404(b) jury instruction “should identify * * * the
particular purpose for which a jury could permissibly use
[specific evidence], rather than providing * * * an
undifferentiated laundry list of evidentiary uses that may
confuse more than it instructs.” McGill, 815 F.3d at 889.
28
But the district court did not commit plain error in reciting
all of the Rule 404(b) purposes because they each applied to
some portion of the pre-2013 evidence. Tellingly, Abou-
Khatwa does not argue that any particular purpose listed was
inapplicable.
Instead, Abou-Khatwa’s objection is that the district court
did not explain “the context in which the[] [various purposes]
might be applicable” and so failed to “inform jurors how to
properly consider the evidence.” Abou-Khatwa Opening Br.
57. But it is the confusion that comes from listing “irrelevant”
purposes that “risk[s] confusing the jury[.]” McGill, 815 F.3d
at 889. There was no basis for such confusion here, and Abou-
Khatwa provides no basis for finding plain error in the district
court’s failure to further elaborate on each purpose.
Abou-Khatwa separately argues that the district court
should have instructed the jury about the proper Rule 404(b)
uses of pre-statute of limitations evidence at the time the
evidence was first admitted during trial. Because Abou-
Khatwa failed to request such a limiting instruction below, we
again review for plain error, and we again find none.
First, in addition to instructing the jury specifically on the
permissible uses of the pre-2013 evidence, the district court
explicitly contrasted those uses with the jury’s duty to render
its verdict on the health care fraud count based on evidence of
conduct occurring between March and December 2013. See
Trial Tr. 1706:22–1707:5 (Nov. 7, 2019), GSA 1834–1835.
Second, to reinforce the distinct evidentiary functions of
pre-2013 and 2013 evidence, the timing of particular acts was
made clear to the jury throughout the trial. In addition, the
district court ordered the government to clearly separate its
29
documentary evidence into pre- and post-statute of limitations
evidence and to mark the dates on such evidence as invoices
and bank statements and to arrange them in chronological
order.
Third, the defense’s opening statement underscored that
“[t]he conduct that you’re going to evaluate to determine
whether or not that man committed health care fraud is in
2013.” Trial Tr. 200:21–23 (Oct. 28, 2019), GSA 328.
All told, the district court’s careful adherence to Rules
404(b) and 403 in its ruling and the protective measures taken
to ensure the jury could properly categorize the evidence in
weighing its verdict reveal no reversible error.5
D
Abou-Khatwa next challenges the summary witness
testimony of both Special Agent Nicole Hinson of the Health
and Human Services Office of Inspector General and forensic
accountant Jill Albee of the Federal Bureau of Investigation.
Federal Rule of Evidence 1006 permits the admission of a
“summary, chart, or calculation to prove the content of
voluminous writings, recordings, or photographs that cannot be
conveniently examined in court.” FED. R. EVID. 1006. The
voluminous underlying records must themselves be admissible
and “must be made reasonably available for inspection and
copying[.]” United States v. Fahnbulleh, 752 F.3d 470, 479
(D.C. Cir. 2014). As long as the summaries of those
5
Because the district court’s decision can be sustained under
Rules 404(b) and 403, we need not and do not reach the
government’s alternative argument that health care fraud under 18
U.S.C. § 1347 is a continuing offense. See Gov’t Br. 41.
30
voluminous records are “accurate and nonprejudicial[,]” id.,
the summaries “can help the jury organize and evaluate
evidence which is factually complex and fragmentally revealed
in the testimony of a multitude of witnesses [or documents]
throughout the trial[,]” United States v. Lemire, 720 F.2d 1327,
1348 (D.C. Cir. 1983).
That said, there are strict limits on the role of summary
witnesses. The trial court must ensure that the witness does
not “usurp the jury’s fact-finding function by summarizing or
describing not only what is in evidence but also what inferences
should be drawn from that evidence.” United States v.
Cooper, 949 F.3d 744, 750 (D.C. Cir. 2020). We have
repeatedly warned that summary witnesses “should not draw
controversial inferences or pronounce[] judgment[.]” United
States v. Mitchell, 816 F.3d 865, 877 (D.C. Cir. 2016) (citation
omitted). “Another danger to be guarded against is that the
jury will treat summary testimony ‘as additional evidence or as
corroborative of the truth[,]’” rather than just a compilation of
existing evidence into a manageable format. Cooper, 949
F.3d at 750 (quoting Lemire, 720 F.2d at 1348).
Abou-Khatwa argues that both Hinson’s and Albee’s
testimony exceeded the bounds of proper summary testimony.
Because Abou-Khatwa raised those objections at trial, we
review the district court’s admission of the evidence for an
abuse of discretion. See Lemire, 720 F.2d at 1348. Applying
that standard, we find no error in the Albee testimony. We
agree with Abou-Khatwa that the Hinson testimony crossed the
line by making impermissible inferences from the documentary
evidence. But that error was harmless.
31
1
Testifying toward the end of trial, Agent Albee reviewed
bank records, CareFirst invoices, and Benefits Consulting
invoices to “determine if there was a difference in the
CareFirst-billed amounts and the [Benefits Consulting]-billed
amounts to clients.” Trial Tr. 1401:8–11 (Nov. 6, 2019), GSA
1529. She prepared charts that addressed two separate time
periods: one before the statute of limitations from January 1,
2010, to March 19, 2013, and a second one within the
limitations period of March 20, 2013, through December 31,
2013. The summaries also broke out the marked-up prices by
client. In addition, by examining bank records, Albee was
able to pinpoint certain relevant dates, such as when Abou-
Khatwa created a bank account for one of his newer companies,
which he later used as a shell company to deceive CareFirst.
Abou-Khatwa argues that Albee’s testimony exceeded the
scope of proper summary witness testimony because when she
“match[ed] the amounts charged by CareFirst with the amounts
charged to clients of Benefits Consulting Associates for each
beneficiary, while accounting for ‘retroactive adjustments,’
[she] performed complex analyses and made substantial
judgments.” Abou-Khatwa Opening Br. 62 (citation omitted).
That argument fails. Comparing one set of invoices to
another set of invoices, although demanding attention to detail,
requires only basic calculations from information on the face
of the compiled records.
Abou-Khatwa also objects to Albee’s inferences about
“which client employees were allegedly assigned to which
groups, whether certain employees were included in plans, and
what happened when beneficiaries were removed or added.”
Abou-Khatwa Opening Br. 62–63. But Albee categorized
32
client employees based solely on Benefits Consulting’s own
invoices to its clients. She would then search through the
CareFirst invoices to determine if she could find a match. If
there was no match between Benefits Consulting and CareFirst
invoices, Albee did not include those subscribers in her
analysis. Cross-referencing invoices to identify the
differences between them simply requires lining up and
comparing information already provided in the invoices
themselves. No inferences are needed. So too did the
“retroactive adjustments” about which Abou-Khatwa
complains, Abou-Khatwa Opening Br. 62; see also Trial Tr.
1527:16–24 (Nov. 6, 2019), GSA 1655, entail nothing more
than properly comparing the CareFirst and Benefits Consulting
invoices based on data provided in those records.
Those aspects of Albee’s testimony all fall within the
permissible bounds of summary testimony. See United States
v. Weaver, 281 F.3d 228, 231 (D.C. Cir. 2002) (postal auditor’s
“routine computations and culling through of documents” to
estimate the minimum amount of cash received daily and to
compare that minimum amount to the close-out logs was
permissible summary witness testimony) (citation omitted); id.
(summary witness’s “review of Weaver’s tax returns and other
financial documents” showing that “his expenditures
significantly exceeded his known income in 1994–1996”
“simply involved the addition of known sources of income and
known expenditures”).
For those reasons, Albee’s summary exhibits and
testimony did not exceed the proper scope of Rule 1006.
33
2
As for Agent Hinson’s testimony, a number of Abou-
Khatwa’s challenges lack merit. But one lands on solid
ground.
Hinson created summary exhibits of data derived from
voluminous documents: history-of-changes logs, CareFirst
invoices, Benefits Consulting invoices, and a couple of
miscellaneous documents from CareFirst. Based on those
voluminous records, she produced a summary exhibit of “the
different organizations that are connected to Tarek Abou-
Khatwa” and another of the “[Benefits Consulting] pay stubs
that were provided to CareFirst[,] * * * compar[ing] the name
on the pay stubs to the employer of the person on the pay stub.”
Trial Tr. 1506:11–15 (Nov. 6, 2019), GSA 1634. She also
created “some date-of-birth changes summary exhibits” and
“some dummies summary exhibits[.]” Trial Tr. 1506:16–17
(Nov. 6, 2019), GSA 1634. In addition, she was given a list
of names by the prosecutor and was asked “to trace what groups
they were placed into throughout the course of their time with
[Benefits Consulting].” Trial Tr. 1514:18–21 (Nov. 6, 2019),
GSA 1642. Based on this list, she created “a summary that
lists a bunch of people and has a timeline of all the different
groups that they’ve been part of[.]” Trial Tr. 1506:17–19
(Nov. 6, 2019), GSA 1634. That compilation of evidence
under Rule 1006 was proper because it was gleaned solely by
looking at the history-of-changes records and sometimes
confirming “a time or a date” on a CareFirst invoice. Trial Tr.
1518:11–13 (Nov. 6, 2019), GSA 1646.
Abou-Khatwa argues that Hinson “essentially served as a
stand-in CareFirst witness, * * * explaining what the
documents were and the information they contained, what
particular fields represented, and how information [was]
34
recorded and updated.” Abou-Khatwa Opening Br. 64. Not
so. The inferences drawn were plainly evident from the
records that Hinson reviewed. For example, she explained
that she knew a change had been made in the CareFirst system
because she could see two columns in the history-of-changes
document, one that said “old value” and another that said “new
value.” Trial Tr. 1524:23–1525:1 (Nov. 6, 2019), GSA 1652–
1653. In another instance, she explained what the column
“retroactive adjustment” meant on a CareFirst invoice, which
she could discern “by looking [only] at the invoice[s].” Trial
Tr. 1527:16–1528:6 (Nov. 6, 2019), GSA 1655–1656. These
basic inferences, resting on knowledge that Hinson gained
during the course of her examination of CareFirst records, fall
within the heartland of proper summary testimony. See
Weaver, 281 F.3d at 231.
Abou-Khatwa presses that Hinson testified about her
conclusion that certain persons listed in the documents were
“dummies” based on inferences she drew from those
documents, and those inferences did “not simply ‘prov[e] the
content’ of voluminous documents.” Abou-Khatwa Opening
Br. 64–65 (citation omitted).
Fair point. Among Hinson’s summary exhibits is a series
of charts, each of which displays the subscribers associated
with a specific entity, identified by name and CareFirst
insurance group number. The charts include columns listing
the subscriber’s name, true employer, original date of birth,
new date of birth, and the date that the birthdate was changed.
The first two charts have asterisks next to some of the
subscribers’ names. Hinson testified that these asterisks
signified that Abou-Khatwa had used them as “dummies”—
that is, fake files. Trial Tr. 1536:15–17 (Nov. 6, 2019), GSA
1664. Previous testimony had explained that the term
“dummy” meant a “fake[,]” Trial Tr. 969:22–23 (Nov. 1,
35
2019), GSA 1097, and that a “dummy” could be created for
example by “taking customers from [business] A and
customers from B, and putting them in C[,]” Trial Tr. 964:23–
25 (Nov. 1, 2019), GSA 1092.
Hinson, though, went beyond summarizing records and
instead claimed to be able to identify specific subscribers as
dummies. She explained that she made those inferences
because “they usually have the middle initial D[,] [t]hey’re
usually employed for one of the CareFirst groups for less than
a month[,] [and] [t]hey very commonly have an address
associated with Tarek Abou-Khatwa.” Trial Tr. 1537:6–9
(Nov. 6, 2019), GSA 1665.
That testimony went too far. In claiming to identify
certain individuals as dummies, Hinson was no longer
summarizing the voluminous records reviewed but instead was
adding her own inference regarding specific modifications of
information by Abou-Khatwa as identifiers of the fake
subscribers. See Mitchell, 816 F.3d at 877. In other words,
she went beyond summarizing and started opining.
Identifying that error does not end our inquiry. We must
determine whether the error was harmless. FED. R. CRIM. P.
52(a); see McGill, 815 F.3d at 880; United States v. Clarke, 24
F.3d 257, 267 (D.C. Cir. 1994). When, as here, the
defendant’s claim of error is preserved, the government bears
the burden of proving that a non-constitutional error did not
have a substantial influence on the verdict. Olano, 507 U.S.
at 734.
The government has met its burden in this case. Hinson’s
improper identification of “dummy” subscribers was
cumulative of ample testimony that Abou-Khatwa used
“dummy” subscribers in his fraud scheme to falsely alter
36
employee ages and other relevant characteristics. Abou-
Khatwa’s personal notes describing his use of “dummies” were
introduced multiple times throughout the trial. Trial Tr.
341:1–25, 344:2–18, 348:15–349:25, 376:3–23 (Oct. 29,
2019); Trial Tr. 467:14–469:25, (Oct. 30, 2019); Trial Tr.
962:3–969:23 (Nov. 1, 2019); Trial Tr. 1247:1–22, 1250:6–23,
1258:3–1259:20 (Nov. 5, 2019), GSA 469, 472, 476–477, 504,
595–597, 1090–1097, 1375, 1378, 1386–1387. Two
witnesses that worked for Abou-Khatwa testified to his use of
“dummies.” Trial Tr. 962:1–969:25 (Nov. 1, 2019); Trial Tr.
1247:1–22, 1250:6–23, 1258:3–1259:20 (Nov. 5, 2019), GSA
1090–1097, 1375, 1378, 1386–1387.
Beyond that, this was not a close case. Extensive
evidence—much of which was in Abou-Khatwa’s own
handwritten records—documented the existence of the scheme
and its operation. His fabrication of employees and their data
was catalogued at length. Against that backdrop, Hinson’s
inference that certain individual records identified “dummies”
used in the scheme was but a small drop in an ocean of evidence
against Abou-Khatwa. It could not have made any
meaningful difference in the outcome.
3
Abou-Khatwa also takes issue with the court’s instruction
advising the jury to “treat the testimony [from the summary
witnesses] and charts and summaries as you treat any other
evidence.” Abou-Khatwa Opening Br. 66 (citation omitted).
Because Abou-Khatwa did not object to this instruction before
the district court, we review only for plain error.
With respect to the summary exhibits, there was nothing
wrong with that instruction. Under Rule 1006, the exhibits
were substantive evidence and needed no limiting instruction.
37
United States v. Hemphill, 514 F.3d 1350, 1359 (D.C. Cir.
2008); Weaver, 281 F.3d at 233; 2 MCCORMICK ON EVIDENCE
§ 241 (8th ed. 2020) (“Federal Rule 1006 is clear that
summaries admitted under its terms are evidence themselves,
substituting for the voluminous documents that are not
admitted into evidence. And because such summaries are
substantive evidence, no limiting instruction is given to the jury
as to its use and it may be taken into the jury room during
deliberations.”).
But with respect to witness testimony about the summary
exhibits, we have a problem. See Mitchell, 816 F.3d at 877
n.16 (noting distinction between summary testimony and
summary exhibits). To ensure that juries do not treat such
testimony as corroborative of the truth of the underlying
documents, this circuit requires a limiting instruction advising
that the testimony “is only an aid in evaluating evidence.”
Lemire, 720 F.2d at 1348 (citation omitted); Cooper, 949 F.3d
at 752 (District court’s jury instruction properly informed jury
that summary witness “testimony was to be used ‘only as a
matter of convenience.’”) (citation omitted).
That means that the district court’s instruction to the jury
to treat the summary witnesses’ testimony as evidence was
error. But it was not plain error as it did not “seriously affect[]
the fairness, integrity or public reputation of [the] judicial
proceedings[.]” Mitchell, 816 F.3d at 878 (quoting United
States v. Marcus, 560 U.S. 258, 262 (2010)). Abou-Khatwa’s
own notes detailing his scheme, the detailed history-of-changes
records, as well as the extensive testimony of clients and
employees provided overwhelming evidence of his guilt
separate and apart from the summary witnesses.
38
E
Abou-Khatwa briefly argues that the aggregate number of
errors that occurred at his trial, when considered cumulatively,
requires reversal. Abou-Khatwa Opening Br. 66–67 (citing
United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005)).
Given that we have identified only two non-prejudicial errors,
the cumulative error doctrine is of no help to Abou-Khatwa.
IV
For all of those reasons, we affirm Abou-Khatwa’s
conviction and sentence.
So ordered.