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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-4565
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
COLBY EDWARD JOYNER,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, District Judge. (3:22-cr-00180-RJC-SCR-1)
Argued: January 30, 2026 Decided: August 12, 2026
Before KING, THACKER, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judges
King and Thacker joined.
ARGUED: Kristen Marie Santillo, GELBER & SANTILLO PLLC, New York, New
York, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Fern Mechlowitz,
GELBER & SANTILLO PLLC, New York, New York, for Appellant. Russ Ferguson,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.
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RICHARDSON, Circuit Judge:
Colby Joyner, a licensed physician assistant, took a part-time, remote job with
MedCare Staffing, Inc., a telehealth company. His job was simple: review patient files
that the company sent him and sign forms ordering genetic tests for Medicare beneficiaries.
Over ten months, Joyner signed orders for some 607 beneficiaries—people he certified
were his “patients,” despite having spoken with only about 20 of them. For each file he
reviewed, he was paid $12 to $15, whether or not he approved the testing. Based on his
orders, laboratories billed Medicare for more than 14,600 tests—over $10 million in
claims. A jury convicted Joyner of healthcare fraud under 18 U.S.C. § 1347, and of making
false statements related to healthcare matters under 18 U.S.C. § 1035(a). And the district
court sentenced him to 72 months’ imprisonment.
Joyner asks us to undo his conviction and sentence. His main contention is that the
district court deprived him of a fair trial by excluding documents relating to MedCare’s
internal compliance efforts, by quashing trial subpoenas for four witnesses who invoked
their Fifth Amendment privilege, and by overruling his objection to the prosecution’s
rebuttal summation. He also says the jury was improperly instructed, the evidence was
insufficient, and the Guidelines calculation was wrong.
We find no reversible error. The district court acted within its discretion in
excluding the compliance documents under Federal Rule of Evidence 403, whatever their
marginal relevance may have been. It permissibly excused the four witnesses after a proper
and particularized inquiry. Assuming the prosecution’s rebuttal improperly invited an
adverse inference from the absence of witnesses who had asserted the Fifth Amendment
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privilege, the isolated comment did not prejudice Joyner’s substantial rights. Joyner’s
remaining challenges to his convictions and sentence fare no better. We therefore affirm.
I. BACKGROUND
Joyner graduated from a physician-assistant program and held a North Carolina
physician-assistant license. In August 2018, while working full-time at a separate clinic,
he took a remote, part-time position with MedCare Staffing, a telehealth company also
known as Provider Partners or Telehealth Solutions (collectively, “MCS”). Thomas Harbin
and Rhonda Polhill owned MCS. Dr. Kevin Smith served as its medical director, and Sara
Smola as its telehealth-operations manager. MCS employed doctors, nurses, and physician
assistants across the country. These employees used patient information supplied by
MCS’s clients to support approvals for medical equipment and genetic testing. Joyner was
one of these employees. Christopher White was the owner of two of MCS’s corporate
clients: Helix and Whitewater.
At first, Joyner reviewed files to determine whether patients qualified for durable
medical equipment. A few months in, White’s companies were expanding to include
genetic testing. In October 2018, White and Dr. Smith trained Joyner and others on
documenting medical necessity for two kinds of genetic tests and on completing laboratory
requisition forms, letters of medical necessity, and cover letters transmitting results. For
cancer genetic testing, Joyner was instructed that a personal or family history of cancer
satisfied medical necessity. For pharmacogenetic testing, he was taught that medical
necessity was met if a patient took multiple medications and risked adverse drug events, or
reported side effects. MCS initially told Joyner to call patients to confirm they wanted
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testing. But in December 2018, Smola advised him that he was responsible only for “chart
review and signature” and did not need to call patients unless there was a discrepancy,
because MCS had “a team of in-house Medical Assistants and Registered Nurses to call
patients.” J.A. 1184. Joyner reviewed files under these criteria until he resigned in July
2019, citing concerns about MCS’s practices. He was paid per file regardless of whether
he approved testing, earning roughly $17,628 in total. Joyner never personally billed
Medicare.
A grand jury charged Joyner with one count of healthcare fraud, 18 U.S.C. § 1347,
six counts of false statements relating to healthcare matters, 18 U.S.C. § 1035(a), and with
aiding and abetting those offenses, 18 U.S.C. § 2. The indictment alleged that the scheme
arose out of Joyner’s work for MCS—specifically, his signing laboratory requisition forms
that White’s companies had filled out in advance and that were “provided to him by [MCS]
and its clients.” Those forms concerned beneficiaries whom others had already preselected for genetic and pharmacogenetic testing. J.A. 19–21. The government’s theory
was that the forms Joyner signed contained at least three false statements: that the
beneficiaries were Joyner’s “patients,” that he would use the test results to pursue care for
them, and that the tests were medically necessary.
Before trial, the government moved in limine to exclude a set of defense exhibits:
MCS’s internal policies and procedures, emails among MCS management documenting
compliance efforts, MCS’s correspondence with the American Telemedicine Association
(“ATA”) about the definition of a “patient encounter,” materials reflecting that MCS
retained a Medicare-compliance consultant, and a legal opinion letter. J.A. 1246. The
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government argued that these documents were irrelevant to Joyner’s intent because he
never received or reviewed them. Joyner responded that they reflected MCS’s duediligence and good-faith compliance efforts, which bore on the existence (or not) of the
charged scheme. The district court granted the motion, reasoning that the charged scheme
was “very tailored to the conduct and intent of Mr. Joyner, not MCS.” It added that any
probative value was substantially outweighed by “a high degree of risk of confusion” and
“unfair prejudice, by distracting the jury from the conduct and the intent of Mr. Joyner to
[that of] others.” J.A. 153.
Earlier on, Joyner had sought a court order requiring MCS to produce documents.
In that request, Joyner had explained that his theory of the case was that MCS, Smith, and
White “knew the Company’s business model was illegal but withheld that information”
from providers like Joyner. J.A. 30. That theory proved consequential when Joyner later
served trial subpoenas on four MCS witnesses—Smith, Polhill, White, and Smola—each
of whom naturally sought to invoke the Fifth Amendment. The day before trial, counsel
for Smith and Polhill told the court that both would assert their Fifth Amendment privilege
if called, citing what they described as false allegations against them in Joyner’s pretrial
filings. The court deferred the issue, and the trial began on June 8, 2023.
In his opening statement, Joyner’s counsel told the jury that it would
“hear . . . testimony” that his employer told him not to call patients, thereby relieving him
of any duty to do so. He also said that the jury would “hear” Smith, Polhill, and Smola say
that they thought White’s companies “were on the up-and-up,” but that the evidence would
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show White was a “fraudster” who lied, cheated, and stole, and that Smith and Polhill “took
it hook, line, and sinker.” J.A. 179, 182.
The government’s case featured Medicare expert Stephen Quindoza, who testified
that Medicare covers genetic and pharmacogenetic testing only when ordered by a treating
physician who uses the results in the patient’s further treatment, and that Medicare did not
cover tests ordered through an asynchronous encounter (one in which provider and patient
never interact in real time). The jury also heard that White had warned providers not to
order too many tests at once to avoid being “flagged,” described the approval process as
“plug and play,” and instructed staff to avoid “no-no words” like “free” and “Medicare.”
J.A. 302, 800–01, 1197, 1200.
Mid-trial, the district court held an evidentiary hearing on the subpoenaed witnesses,
directing Joyner’s counsel to have the witnesses present on Monday, June 12. White
appeared through counsel and represented that he would invoke the Fifth Amendment as
to any questions related to the charges against Joyner. Although he had pleaded guilty in
the Middle District of Florida to a kickback conspiracy, his plea agreement protected him
only in that district. Smola appeared in person, said that Joyner’s counsel had made “false
accusations” against her and MCS, and confirmed that she would invoke the privilege. J.A.
606–07. Smith and Polhill did not appear; their attorney reported that Joyner’s counsel had
told them they need not appear until June 13, and Joyner’s counsel admitted telling Smith
as much. Given that Joyner’s counsel “excused” witnesses whom the district court had
directed to appear, the court found “fault with the way defense counsel handled these
proceedings.” J.A. 628. The district court also found that all four witnesses had reasonable
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cause to apprehend a danger of self-incrimination—particularly given the accusations
leveled in Joyner’s pleadings and opening statement—and quashed the testimonial
subpoenas. It ruled in the alternative that exclusion was warranted under Federal Rule of
Evidence 611(a) given defense counsel’s “lack of transparency with the Court” and “side
agreement[s]” with the witnesses. J.A. 82–83.
Joyner then testified in his own defense: He was inexperienced with genetic testing,
believed MCS was a reputable company run by seasoned professionals, raised questions
with management and was led to believe the questions reached Harbin and Dr. Smith, and
never believed his work violated the law or Medicare rules. He acknowledged speaking
with only about 20 of the more than 600 beneficiaries and that he “did not use” the test
results. J.A. 791.
After the defense rested, the prosecution began its rebuttal summation:
[Y]ou just heard from defense counsel about how they put on a case. But
think back to what they said at the beginning of this case. They told you that
they will put evidence in front of you that will show that Colby Joyner is
innocent . . . because [MCS] was tricked by Dr. White. And . . . they told you
you’re going to hear evidence, you’ll see legal documents, showing that all
their policies were vetted by lawyers. He said you were going to hear from
all those folks, he put up photos of all those employees. Did you see any of
that? Did any of that actually come into evidence? . . . No, it didn’t. It fell
flat. It went nowhere.
J.A. 867. The court overruled Joyner’s objection and gave no curative instruction.
The court gave three instructions that matter here. Those instructions stated that a
representation is false “if it is known to be untrue” or “when it constitutes a half-truth or
effectively omits or conceals a material fact, provided it is made with the intent to defraud,”
J.A. 882; that intent to defraud could be found if Joyner “purposefully closed his eyes to
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avoid knowing what was taking place around him,” J.A. 884; and that Joyner could be
found guilty on an aiding-and-abetting theory if he “join[ed] another person and
perform[ed] acts with the intent to commit a crime,” J.A. 884–85. During deliberations,
the jury asked, “When is someone considered a patient under a [physician assistant]?” The
court answered that the term carried its “ordinary, everyday meaning.” J.A. 898–99. The
jury then convicted Joyner on all counts.
The district court imposed a 72-month sentence, and Joyner timely appealed.
II. DISCUSSION
Joyner raises a number of challenges on appeal. We address each one in turn and
find none convincing.
A. The District Court Permissibly Excluded The Internal MCS Documents
We review evidentiary rulings for abuse of discretion, and “we will only overturn a
ruling that is arbitrary and irrational.” United States v. Nsahlai, 121 F.4th 1052, 1060 (4th
Cir. 2024) (quoting United States v. Farrell, 921 F.3d 116, 143 (4th Cir. 2019)). Even
then, evidentiary errors are subject to harmless-error review, and an error is harmless if we
can say “with fair assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substantially swayed by the
error.” Id. (quoting United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010)).
Joyner argues that the district court abused its discretion by excluding documents
showing MCS’s compliance efforts. That evidence included the company’s internal
policies and procedures; emails among MCS leadership; MCS’s correspondence with the
ATA about how that industry association “officially defines a patient encounter,” J.A.
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1237; materials reflecting that MCS retained a Medicare-compliance expert and scheduled
monthly compliance meetings; assurances to providers that MCS was “in constant pursuit
of compliance,” J.A. 1255; and the attorney opinion letter concluding that MCS was “quite
compliant with applicable law,” J.A. 1246. On Joyner’s telling, the documents did three
things. They tended to rebut the existence of a scheme to defraud, undermined the
inference that fraud would have been obvious to him, and—through the ATA
correspondence—bore on whether calling the beneficiaries his “patients” was false at all.
He claims that these exclusions denied him his constitutional due process right to present
a defense.
We begin with framing. Joyner invokes the Constitution, but his complaint is, at
bottom, that particular exhibits should have been admitted. That claim is “better framed as
an evidentiary argument,” subject to ordinary abuse-of-discretion review and harmlessness
principles. United States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009); see also Nsahlai,
121 F.4th at 1059 n.7. And the record undermines any suggestion that Joyner was
prevented from defending himself: He testified at length about his training, his
communications with MCS management, his understanding of the forms, and his belief
that the operation was lawful, and the jury heard MCS’s compliance assurances through
other admitted evidence. What remains is a routine ruling on the admissibility of evidence.
On that question, we need not embrace the district court’s relevance rationale to
affirm its ruling. The court excluded the inter-employee emails as irrelevant, explaining
that Joyner had never seen these emails and that the charge was “very tailored to the
conduct and intent of Mr. Joyner, not MCS.” J.A. 153. The court also excluded the
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company policies and legal memoranda as irrelevant, and ruled in the alternative that—
even if relevant—the documents’ probative value was substantially outweighed by “a high
degree of risk of confusion, unfair prejudice, by distracting the jury from the conduct and
the intent of Mr. Joyner to [that of] others.” Id.
We may sustain an evidentiary ruling on any ground that the record supports,
whether the district court invoked it or not. United States v. Ferguson, 140 F.4th 538, 546
(4th Cir. 2025) (“Evidence rulings may be affirmed if they are correct—whether the district
court explains why or not.”). So even if the district court relied on the wrong reason—or
gave no reason—we ask only whether the ruling was right. Id. Here, the district court
excluded the company policies and legal memoranda under both Rule 401 and Rule 403,
and it excluded the inter-employee emails under Rule 401 alone. We need not parse those
rationales, because the same Rule 403 balancing that the district court conducted supports
excluding all of the challenged documents. We rest our decision there and express no view
on the district court’s Rule 401 analysis. 1
Rule 403 permits a district court to exclude relevant evidence “if its probative value
is substantially outweighed by a danger of one or more of the following: unfair prejudice,
1
The government contends that Joyner abandoned any Rule 403 argument by failing
to brief it. Gov’t Br. 39. Perhaps. Joyner’s opening brief does mention Rule 403 and notes
exclusion under it was “erroneous and an abuse of discretion.” Opening Br. 22. But Joyner
provided argument only as to relevance under Rule 401. See Grayson O Co. v. Agadir Int’l
LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“passing shot” insufficient). Even so, we exercise
our discretion to reject the argument on the merits.
We add that even if we ignored the Rule 403 basis for excluding the inter-employee
emails, their exclusion was harmless. The identified emails documenting what MCS’s
officers said to one another could not have substantially swayed the judgment. See Nsahlai,
121 F.4th at 1060.
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confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403. Our review thus asks only how a
reasonable jurist could have struck that balance, not whether we would have done so in the
first instance. See Nsahlai, 121 F.4th at 1060.
Start with the probative-value side of the ledger. Whether the documents were
probative depends on what the government had to prove. The government’s theory of the
case had two strands. First, Joyner himself knowingly executed a scheme to defraud
Medicare through the false forms he signed. Second, he aided and abetted an existing
scheme—run through MCS’s clients and, above all, White—by supplying the one thing
that scheme could not function without: a licensed provider’s signature. On either strand,
evidence that MCS’s officers tried to comply with the law does little work for Joyner. A
“scheme to defraud” requires “a plot, plan, or arrangement” executed through fraudulent
transactions, United States v. Bajoghli, 785 F.3d 957, 962–63 (4th Cir. 2015), and aidingand-abetting liability requires that the underlying offense was committed by someone
whom the defendant knowingly and intentionally assisted. See United States v. Moye, 454
F.3d 390, 398 (4th Cir. 2006); Rosemond v. United States, 572 U.S. 65, 71 (2014). Nothing
about either theory required the government to prove that MCS’s officers possessed a
fraudulent intent.
For one, White’s underlying scheme—channeling pre-selected Medicare
beneficiaries through pre-populated requisition forms to laboratories that billed Medicare
millions—existed, or not, regardless of whether MCS’s principals were knowing
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participants, useful dupes, or something in between. So evidence that MCS’s officers acted
in good faith does not make the charged scheme less probable.
What’s more, the documents are worth little as direct proof of Joyner’s own state of
mind with respect to the underlying scheme. Joyner concedes that he never saw these
documents, and a document that he never saw cannot speak to what he believed. Indeed,
Joyner remained free to introduce—and did introduce—evidence of everything he actually
saw and heard. The excluded materials, by contrast, concerned matters he did not and
could not have known about.
That leaves the indirect inference on which Joyner seeks to ground his relevance
theory. The government argued at trial that the red flags surrounding this operation—the
training video, the “plug and play” forms, the warnings about being “flagged,” the absence
of any real patient encounter—would have been open and obvious to any professional in
Joyner’s position. J.A. 835–36, 874. Joyner argues that if MCS’s own sophisticated
officers, armed with lawyers and compliance consultants, purported to believe the model
was lawful, then the fraud was not obvious after all—which in turn makes it marginally
less likely that Joyner recognized it.
Joyner has a plausible argument that this evidence might have had some relevance.
If MCS’s officers—professionals with the advice of counsel, a compliance consultant, and
an industry association—believed in good faith that the model was lawful, a jury might
infer that its illegality was not so obvious. Joyner, who had less information and expertise
than they did, might have been less likely to have recognized its illegality.
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But probative value is only one side of the Rule 403 balance. And the inference that
this evidence arguably supports is a step removed from the question that mattered. What
MCS’s officers believed turned on what they told their lawyer, what they asked the
association, and what their consultant reviewed—none of which bears directly on the red
flags Joyner himself confronted when he reviewed files for hundreds of strangers, signed
forms calling them his patients, and certified tests he would never use. Thus, on the
question that actually mattered—what Joyner knew or should have known—the documents
carried materially less weight than he suggests. The question, then, is whether the district
court could reasonably conclude that even this diminished value was substantially
outweighed by the dangers of admitting the evidence. It could.
Three such dangers stood on the other side of the ledger. Each was evident on the
face of this record. So exclusion was a reasonable resolution of the balance.
First, confusion of the issues. This is not the unremarkable observation that
admitting the documents would have introduced contested facts; contested facts are the
stuff of every trial, and a factual dispute is not itself a reason to exclude relevant evidence.
Our concern is more specific. In order to draw the inference that the fraud was not so
obvious because MCS’s officers thought the model was lawful, the jury would first have
had to decide what those officers actually knew and believed: that is, whether they were
knowing participants in White’s scheme, negligent dupes, or completely innocent. That is
a question about the culpability of people not on trial, and a different question from the one
that the jury was empaneled to answer: What did Joyner know? Litigating this question
would have required the jury to probe what facts MCS disclosed to its lawyer, whether its
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compliance program was genuine or mere window dressing, and what its principals
understood about White’s operation—in essence, inviting the jury to assess the guilt or
innocence of absent non-parties as a predicate to judging Joyner. Rule 403’s worry about
“confusing the issues” and “wasting time” concerns precisely this sort of excursion, which
threatened to “distract[] the jury from the conduct and the intent of Joyner to [that of]
others.” J.A. 153.
Second—and relatedly—the risk of misleading the jury, particularly with regard to
the legal opinion letter. Whether MCS’s model complied with Medicare’s requirements
was a question of law on which the jury would be instructed by the court and informed by
expert witnesses, not by a retained attorney’s letter to his client. A lawyer’s opinion cannot
make lawful what the law forbids, and a jury shown a legal opinion stating that MCS’s
business model was compliant may struggle to keep that opinion in its proper place. 2 More
problematically, the letter did not even offer a legal opinion about whether MCS’s platform
complied with Medicare’s coverage rules. Rather, it addressed only the platform’s
compliance with Georgia law and with federal laws against kickbacks and self-referrals.
Furthermore, its conclusion that the company was “quite compliant with applicable law”
was conditioned on assumptions that the opining attorney did not test: that the physicians
would adhere to each state’s telemedicine requirements, including “the use of electronic
visual access where required” and the generation of genuine patient medical records. J.A.
2
True, the letter might have carried weight as advice-of-counsel evidence, but only
for someone who saw and relied on it. Again, Joyner never saw the letter, so it could not
support a reliance defense for him; its only realistic function was to suggest, obliquely, that
the operation was lawful or that someone else thought so.
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1246. So the district court could reasonably conclude that the letter could mislead the jury
far more than it could illuminate how obvious the fraud would have been to Joyner. 3
Third, cumulativeness. The jury did not lack evidence that MCS held itself out—
internally and to its providers—as a compliant operation. It heard assurances from Dr.
Smith and Polhill that MCS had “dotted their Is and crossed their Ts,” J.A. 702, and was
“conducting a professional and compliant operation,” J.A. 722. And MCS’s written
communications to providers, including the December 2018 email restructuring Joyner’s
duties, were admitted into evidence. Joyner himself testified to the assurances he received
and the trust he placed in MCS’s leadership. The excluded documents would have only
layered additional, secondhand iterations of the same basic point—MCS’s purported
compliance—at the cost of the dangers just described. This is why Rule 403 expressly
allows a district court to decline “needlessly presenting cumulative evidence.” Fed. R.
Evid. 403.
Weighing these dangers against whatever thin probative value the excluded
documents may have provided, the district court’s exclusion was neither arbitrary nor
3
That is true of the ATA correspondence no less than the rest of the documents.
Joyner casts that letter as proof that “patient encounter” can encompass asynchronous
review, and thus that calling the beneficiaries his “patients” was not false. But the
governing coverage requirements were established at trial through Medicare’s own rules
and expert testimony, and a trade association’s definitional gloss—solicited by MCS, and
never seen by Joyner—invited exactly the collateral dispute over third-party
understandings that the district court was justified to avoid. Furthermore, the government’s
falsity theory never rested on the word “patients” alone: The forms also represented that
Joyner would use the test results to pursue care for the beneficiaries and that the tests were
medically necessary, representations that Joyner’s own testimony undercut.
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irrational. Nsahlai, 121 F.4th at 1060. Thus, the district court did not abuse its discretion
in excluding these documents under Rule 403. 4
B. The District Court Permissibly Quashed The Testimonial Subpoenas
A district court’s decision to quash the subpoena of a witness who will invoke his
Fifth Amendment privilege is ultimately an evidentiary ruling reviewed under the same
deferential standard, even when the defendant frames the exclusion as a denial of his right
to present a complete defense. United States v. Oliver, 133 F.4th 329, 335 (4th Cir. 2025);
see United States v. Branch, 537 F.3d 328, 342 (4th Cir. 2008).
Joyner challenges the district court’s decision to excuse White, Smith, Polhill, and
Smola from testifying after each invoked the Fifth Amendment privilege against selfincrimination. As Joyner sees it, the district court’s inquiry was insufficiently
particularized in three ways. First, it did not proceed question-by-question with each
witness in-person. Second, Smith, Polhill, and Smola faced no genuine incrimination risk
once Joyner disclaimed any intent to accuse them of wrongdoing. Third, White, having
already pleaded guilty and been sentenced in the Middle District of Florida, had nothing
left to incriminate. Each fails.
4
Joyner separately contends that the district court abused its discretion by
overruling his objection to the government’s cross-examination about his earnings as a
physician assistant—questioning premised on salary figures never introduced into
evidence, which the government later invoked in summation to portray Joyner as “one of
the highest-paid physician assistants in the country, let alone North Carolina.” J.A. 873.
We see no abuse of discretion. Joyner’s defense rested in substantial part on his professed
inexperience and the modesty of his pay from MCS, so his compensation and professional
standing were fair subjects of cross-examination. In any event, any error in permitting this
brief exchange was harmless in light of the evidence of Joyner’s conduct. See Nsahlai,
121 F.4th at 1060.
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Start with the governing principles. “A criminal defendant’s right to compel
testimony is fundamental to sixth and fourteenth amendment due process rights.” Gaskins
v. McKellar, 916 F.2d 941, 950 (4th Cir. 1990). But that right must yield to a witness’s
valid privilege against self-incrimination. To police the boundary, “the trial judge must
make a proper and particularized inquiry into the legitimacy and scope of the witness’
assertion of the privilege.” Id. A witness may be excused entirely only if he could
legitimately refuse to answer every relevant question. Id. The privilege is generous in
scope. It covers not only answers that would directly support a conviction but also those
that “would furnish a link in the chain of evidence needed to prosecute” the witness.
Hoffman v. United States, 341 U.S. 479, 486 (1951). At the same time, a witness’s bare
“say-so does not of itself establish the hazard of incrimination.” Id. The hazard must be
“substantial and real, and not merely trifling or imaginary.” Marchetti v. United States,
390 U.S. 39, 53 (1968) (cleaned up). And again: Whether a particular witness’s assertion
clears that bar is committed in the first instance to the trial judge, whose ruling we review
only for abuse of discretion. Oliver, 133 F.4th at 335.
Here, the district court’s inquiry was sufficiently particularized. The court did not
resolve the question on the papers the moment it arose. Rather, it cautiously deferred ruling
until it could “talk to both sides.” J.A. 157. It then announced before the close of the
government’s case that it would hold an evidentiary hearing. It also directed Joyner’s
counsel to produce the subpoenaed witnesses on June 12. At that hearing, the court heard
from Smola in person, who explained that a filing by Joyner’s counsel contained “false
accusations” against her and MCS and confirmed her intent to invoke the privilege. J.A.
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606–07. It received and considered the written submission of counsel for Smith and
Polhill, which invoked the privilege in response to the same accusations. It heard from
White’s counsel, who explained that his plea agreement foreclosed further charges only in
the Middle District of Florida. And the court made witness-specific findings that each had
reasonable cause to apprehend a danger of self-incrimination—findings it made with
Joyner’s contrary representations in view.
Joyner’s principal rejoinder is procedural: Because the privilege attaches question
by question, he insists the district court was obliged to put each witness on the stand and
rule question by question. See United States v. Miller, 434 F. App’x 287, 293 (4th Cir.
2011). That argument mistakes the privilege’s substance for a script. Our cases prescribe
the substance of the inquiry, not its form: No case of ours requires live, seriatim
questioning to satisfy that duty. See Oliver, 133 F.4th at 337–38; see also United States v.
Ramos, 763 F.3d 45, 55 (1st Cir. 2014). What matters is whether the district court could
reasonably conclude, on a witness-by-witness basis, that each could legitimately refuse to
answer the full range of relevant questions Joyner proposed to ask. It could.
Consider what Joyner wished to ask, and of whom. His own Rule 17 filing
announced that his theory of the case was that MCS, Smith, and White “knew the
Company’s business model was illegal but withheld that information” from Joyner and
other providers, and that Smola had trained him to follow unlawful procedures. J.A. 30.
His opening statement told the jury that White was a “fraudster” who lied, cheated, and
stole. J.A. 182. And the topics he identified for examination—MCS’s structure, its
relationship with White, its due diligence and compliance efforts, and the contents of its
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training—called on these witnesses to give a sworn account of their own roles in designing
and operating the very business model that the government was proving to be a vehicle for
fraud. Answers about what they knew of White’s operation, what the laboratories were
billing, what concerns were raised internally, and how the training and forms came to be
could each “furnish a link in the chain” of a future prosecution. Hoffman, 341 U.S. at 486.
Joyner responds by claiming that he had disavowed his earlier accusations, and that
witnesses face no incrimination risk in simply denying wrongdoing. But that assumes the
witnesses would have testified that way. We measure the hazard differently—by
considering the answers that the question could elicit, not by the questioner’s motivations;
here, the questions Joyner proposed demanded accounts of the witnesses’ own conduct at
the center of an ongoing fraud investigation. The district court thus found a real and
appreciable danger.
Nor may Joyner complain that Smith and Polhill were not questioned in person.
They were absent from the June 12 hearing because Joyner’s own counsel—contrary to the
district court’s express directive—advised them that they need not appear until June 13.
The district court found “fault with the way defense counsel handled these proceedings,”
attributed the witnesses’ absence to “the poor communication of [Joyner’s] counsel,” and
concluded that their absence did not “interfere with the Court’s ability to make a
particularized and proper inquiry” in light of their counsel’s submissions. J.A. 628–29. A
defendant cannot manufacture a procedural shortcoming—here, the lack of live
questioning—through his own counsel’s conduct and then present that shortcoming as
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reversible error. See Shields v. United States, 273 U.S. 583, 586 (1927); United States v.
Herrera, 23 F.3d 74, 76 (4th Cir. 1994). One who sows the deficiency reaps it. 5
Finally, as to White’s invocation of the privilege, Joyner argues that “where there
can be no further incrimination, there is no basis for the assertion of the privilege.” Mitchell
v. United States, 526 U.S. 314, 326 (1999). Quite true. But here, there could be further
incrimination. White’s plea agreement protected him from additional charges only in the
Middle District of Florida, and his counsel represented that he faced potential exposure in
other jurisdictions. Testimony about his genetic-testing operation could readily supply
evidence for charges in those jurisdictions. And Joyner’s offer to confine questioning to
White’s sentenced conduct does not solve the problem; the conduct underlying White’s
Florida kickback conviction and the conduct at issue overlap, but they are not coextensive,
and there is no reason to believe that his testimony could be cabined with the precision that
Joyner supposes. See Hoffman, 341 U.S. at 486 (An answer need not convict to be
privileged, only to “furnish a link in the chain.”). The district court was thus entitled to
credit counsel’s representations and to conclude that White, too, could legitimately refuse
to answer any and all relevant questions. 6 We therefore conclude that the district court did
not abuse its discretion in quashing the subpoenas.
5
Galatians 6:7 (“[W]hatever one sows, that will he also reap.”) (English Standard
Version).
6
Because the district court acted within its discretion in excusing all four witnesses
on Fifth Amendment grounds, we need not consider its alternative ruling under Federal
Rule of Evidence 611(a). We note only that the rule’s text speaks to the “mode and order
of examining witnesses and presenting evidence,” Fed. R. Evid. 611(a), and we have
cautioned that it does not license a court to “foreclose a legitimate inquiry” of a witness’s
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C. The Prosecution’s Rebuttal Does Not Warrant A New Trial
District courts enjoy broad discretion over closing arguments, and we will reverse
only for clear abuse. United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010). To
prevail, Joyner must show that the remarks (1) were improper and (2) “prejudicially
affected the defendant’s substantial rights so as to deprive him of a fair trial.” United States
v. Wilson, 135 F.3d 291, 297 (4th Cir. 1998) (cleaned up).
Joyner contends that the district court erred in overruling his objection to the
beginning of the government’s rebuttal summation, in which the prosecutor reminded the
jury of the defense’s opening-statement promises—the witnesses it would call, the
documents it would present—and then asked, “Did you see any of that? Did any of that
actually come into evidence? . . . No, it didn’t. It fell flat. It went nowhere.” J.A. 867.
Even assuming that these remarks were improper, 7 they did not deprive Joyner of a
fair trial. Six factors drive the prejudice inquiry: (1) the remarks’ tendency to mislead, (2)
credibility altogether. United States v. Leake, 642 F.2d 715, 718–19 (4th Cir. 1981).
Whether Rule 611(a) could independently support the wholesale exclusion of these
witnesses is a question we leave unanswered.
7
Whether the remarks were improper is a close question. The Fifth Amendment
bars a prosecutor from commenting on a defendant’s silence. Griffin v. California, 380
U.S. 609, 612, 614 (1965). And prosecutors may not comment on the absence of a witness
who has a Fifth Amendment privilege not to testify. United States v. Golding, 168 F.3d
700, 703 (4th Cir. 1999). But this bar does not prevent a prosecutor from pointing out that
the defense failed to produce testimony or evidence that it promised to the jury—even
testimony that failed to materialize because of the Fifth Amendment privilege. The
Supreme Court so held in Lockett v. Ohio, 438 U.S. 586 (1978). There, defense counsel’s
own promise that the jury would hear the defendant testify had “focused the jury’s
attention” on the missing testimony, such that the prosecutor’s observation that she failed
to testify “added nothing to the impression that had already been created.” Id. at 595. Such
is the risk of making promises in opening.
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whether they were isolated or extensive, (3) the strength of the proof absent the remarks,
(4) whether they deliberately diverted the jury to extraneous matters, (5) whether the
defense’s own conduct invited them, and (6) whether the court gave a curative instruction.
Wilson, 135 F.3d at 299. No single factor controls, and all are weighed against the whole
trial. Id. Five of the six run against Joyner.
First, the remarks’ capacity to mislead was limited by their own framing. The
prosecutor anchored the comment to “what [the defense] said at the beginning of this case.”
J.A. 867. That meant the jury’s own memory of the opening statement. In that opening,
Joyner’s counsel promised testimony from multiple witnesses and documentary evidence.
The jury then watched the defense’s case end without hearing from those witnesses or
seeing those documents. It did not need the prosecutor to explain that the opening’s
Even so, it is not clear what the prosecutor conveyed in the statements that “It fell
flat” and “It went nowhere.” J.A. 867 (emphasis added). The government contends that
this comment referred to the defense’s unkept promises, not the witnesses’ absence. On
the government’s reading, the antecedent of “it” was the “evidence” or “documents,” and
a prosecutor may permissibly observe that a party failed to produce evidence it told the
jury to expect. J.A. 867; see also id. (noting defense counsel put up photos of those
witnesses and said you would hear from them). That reading has real force. See United
States v. Francis, 82 F.3d 77, 78–80 (4th Cir. 1996) (asking whether, in context, the
prosecutor’s statement was “manifestly intended to be, or was it of such character that the
jury would naturally and necessarily take it to be a comment on the failure of the accused
to testify”). So framed, the remark would distinguish this case from Golding, where the
prosecutor initiated the invitation for the jury to speculate about why a specific privileged
witness “didn’t ever come up here and testify.” 168 F.3d at 703.
Still, Joyner says the references to the witnesses who had invoked the privilege,
rather than the unfulfilled promises, did invite speculation. Here, we need not decide
whether the remark was improper; we assume without deciding that it was and conclude
that it nevertheless was non-prejudicial.
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promises had gone unfulfilled; it had observed as much firsthand. 8 To conclude that the
prosecution’s remarks planted the inference of a collapsing defense assumes a jury that had
forgotten the defense’s opening and its own observation of the trial. See Lockett, 438 U.S.
at 595 (“[T]he prosecutor’s closing remarks added nothing to the impression that had
already been created by Lockett’s refusal to testify after the jury had been promised a
defense by her lawyer and told that Lockett would take the stand.”).
Second, the remarks were isolated: a single passage of roughly a dozen lines at the
beginning of a rebuttal spanning eleven transcript pages, following a sixteen-page principal
summation that did not touch the subject. The prosecutor named no witness, made no
reference to the witnesses’ invocation of the Fifth Amendment, and did not return to the
theme of these missing witnesses for the remainder of the rebuttal. Cf. Golding, 168 F.3d
at 703 (finding prejudice where prosecutor repeatedly pressed the absent-witness inference
throughout closing rebuttal).
Third, the strength of the government’s case further dissipates any prejudice. The
jury heard that though Joyner spoke with roughly 20 of more than 600 beneficiaries, his
orders resulted in more than 14,600 genetic tests; that he repeatedly represented that he
would use the test results to pursue their care despite admitting that he “did not use” them,
J.A. 791; and that his training featured “plug and play” forms, warnings against ordering
8
The remarks’ ambiguity likewise blunts their force. A reasonable juror could as
easily have understood them to comment on the defense’s unfulfilled promise of
documentary proof—a permissible observation—as on the witnesses’ absence. A remark
fairly open to an innocuous construction is, by the same measure, less apt to have misled
the jury toward the impermissible inference Joyner alleges. What makes the comment’s
propriety a close question is also what diminishes its capacity to prejudice.
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too many tests at once to avoid being “flagged,” and instructions to avoid “no-no words”
like “free” and “Medicare.” J.A. 302, 800–01, 1197, 1200.
Fourth, the remarks did not divert the jury to extraneous matters. Whether read as
a comment on the defense’s unkept promises or on the witnesses’ absence, they addressed
the defense’s framing of the case, not some collateral subject intended to confuse or inflame
the jury.
Fifth, the remarks were invited by the defense’s own conduct. A reviewing court
“must not only weigh the impact of the prosecutor’s remarks, but must also take into
account defense counsel’s opening salvo.” United States v. Young, 470 U.S. 1, 12 (1985).
When counsel gave his opening, he knew that Smith and Polhill had, just one day earlier,
announced their intent to invoke the privilege. He also knew that he had alerted the court
that his subpoenaed witnesses were “allud[ing] to taking the Fifth.” J.A. 155–56. The
court had likewise already announced its inclination to exclude the compliance documents.
Counsel nonetheless promised the jury it would “hear from all those folks” and see the
documents. J.A. 179, 182. Though the court had not yet ruled on the subpoenas, they were
genuinely contested. An opening statement forecasts evidence counsel has a good-faith
basis to expect; it is not a device for placing before the jury, as promised proof, testimony
counsel had substantial reason to doubt would ever come in. And in closing, the defense
pressed the point, telling the jury that “[i]f there was evidence, they would have showed
you.” J.A. 846. The prosecutor’s remarks responded to promises the defense itself made
in opening. Cf. Young, 470 U.S. at 12–13 (in assessing prejudice, a reviewing court
considers the prosecutor’s remarks in context, including defense counsel’s own
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statements). So even if the prosecution’s remarks traded on the witnesses’ absence—that
is what makes it, on the assumption we have indulged, improper—their force was blunted
by their responsive character.
That leaves the court’s failure to give a curative instruction. That factor favors
Joyner, as does the comment’s potential to focus the jury on witnesses whom the court had
excused and evidence the court had excluded. The remaining circumstances point the other
way: The comment was brief, arose in rebuttal, did not mention the Fifth Amendment, and
responded to specific promises in the defense opening. Thus, weighing all six factors “in
the context of the entire trial,” Wilson, 135 F.3d at 299, we are satisfied that the remark did
not deprive Joyner of a fair trial.
D. The District Court Did Not Commit Plain Error In Its Jury Instructions
We ordinarily review the decision to give a particular jury instruction for abuse of
discretion and review de novo whether an instruction correctly states the law. United States
v. Miltier, 882 F.3d 81, 89 (4th Cir. 2018). Where, however, a party fails to lodge a timely
and specific objection as Federal Rule of Criminal Procedure 30(d) requires, our review of
that unpreserved challenge is for plain error only. See Fed. R. Crim. P. 30(d); United States
v. Cowden, 882 F.3d 464, 475 (4th Cir. 2018). Under that standard, Joyner must show an
error that is plain, that affected his substantial rights, and that “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Olano, 507 U.S.
725, 732 (1993) (cleaned up).
Joyner challenges two instructions: the aiding-and-abetting charge and how the
court defined “false statement.” Only the first challenge was preserved and giving the
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aiding-and-abetting charge did not constitute an abuse of discretion. The second challenge
was not preserved and fails under plain-error review.
1. Aiding and Abetting
This challenge was preserved. At the charge conference, Joyner’s counsel objected
to giving the aiding-and-abetting instruction at all. He argued that the government had
abandoned any accomplice theory by representing “that [its] case [was] not based on
anyone aiding and abetting,” and that no evidence showed that anyone had “aided and
abetted.” J.A. 539. But the government had said no such thing. In its motion in limine,
the government had stated only that it did not “intend to call [the MCS employee] witnesses
to testify.” J.A. 37. This was a representation about the witnesses it planned to call, offered
in support of excluding those witnesses’ internal emails, not a disavowal of the accomplice
theory charged in the indictment. Nevertheless, based on that mistaken understanding,
defense counsel argued that the instruction “ha[d] the risk of confusing the jury” by
“potentially blurring Chris White into this,” when the evidence showed no communications
between Joyner and White beyond the training video. J.A. 539. The district court
overruled the objection, finding “evidence of aiding and abetting in terms of the
prepopulated forms and other evidence,” observing that “the bulk of the money defrauded
from Medicare went to others in the scheme,” and expressly noting the objection for the
record. J.A. 539–40. We therefore review the decision to give the instruction for abuse of
discretion.
There was no abuse. To establish aiding and abetting, the government must show
that the defendant “knowingly associated himself with and participated in the criminal
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venture.” United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc) (cleaned
up); see Rosemond, 572 U.S. at 71. A district court does not abuse its discretion by
instructing the jury on that theory where the trial evidence would support a finding of those
elements. The evidence here did. The jury heard that Joyner was one of many providers
working through MCS and its clients. It heard that White warned providers not to order
too many tests at once to avoid being “flagged,” and described the approval process as
“plug and play.” And it heard that the operation funneled pre-selected beneficiaries
through pre-populated forms that Joyner signed, generating orders that laboratories billed
to Medicare. From that evidence, a rational jury could find that an offense was committed
by others and that Joyner knowingly associated himself with, and sought to advance, the
venture. The instruction was therefore warranted.
Joyner also objects that it was fundamentally unfair to instruct on accomplice
liability—and on willful blindness—after the court had excluded evidence about the
conduct and intent of others. He invokes the due-process principle articulated by the
Second Circuit in United States v. San Juan, 545 F.2d 314 (2d Cir. 1976), under which a
defendant may not be misled into directing his defense at one theory of liability only to be
convicted on another theory. See United States v. Hobby, 702 F.2d 466, 470 (4th Cir.
1983), aff’d, 468 U.S. 339 (1984). But “San Juan is not this case.” Id. From the outset,
the indictment charged Joyner with aiding and abetting, so he litigated with full notice of
that theory. Cf. Hobby, 702 F.2d at 469–70 & n.4. And the same core of operative facts—
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his review and signing of the pre-populated requisition forms—supported both theories of
liability, and his good-faith defense applied with equal force to each. See id. at 469–70. 9
The same evidence that supported the aiding-and-abetting charge supported the
willful-blindness charge, which is appropriate where a defendant claims lack of knowledge
in the face of evidence supporting an inference of deliberate ignorance. See United States
v. Hale, 857 F.3d 158, 168 (4th Cir. 2017). Neither instruction denied Joyner due process.
2. The “False Statement” Instruction
The district court instructed the jury that a representation is false “if it is known to
be untrue” or “when it constitutes a half-truth or effectively omits or conceals a material
fact, provided it is made with the intent to defraud.” J.A. 882. Joyner contends this
conflicts with Thompson v. United States, which held that a statement that is misleading
but true is not a “false statement.” 604 U.S. 408, 417 (2025).
Because Joyner did not object to this instruction below, our review is for plain error.
So Joyner must establish an error that is plain, that affected his substantial rights, and that
9
Nor did the instruction prejudice Joyner, even assuming that counsel was misled.
Cf. Hobby, 702 F.2d at 469 (“If we assume that defense counsel was misled . . . we can
perceive no consequential prejudice to [the defendant].”). And Joyner was not prevented
from litigating the question that mattered, i.e., whether he knew—or deliberately avoided
knowing—that the operation was fraudulent. The red flags that the government put before
the jury to rebut Joyner’s claimed good faith—the “plug and play” forms, J.A. 1197, the
warning against ordering too many tests to avoid being “flagged,” J.A. 801, 1200, and the
hundreds of strangers he certified as his “patients”—were his to explain regardless of what
MCS’s officers were told. And he was afforded an opportunity to explain them: He
testified at length to his good faith, cross-examined the government’s witnesses, and argued
the point to the jury. That the jury did not buy his story does not mean Joyner was
whipsawed.
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seriously affects the fairness, integrity, or public reputation of judicial proceedings. Olano,
507 U.S. at 732. He has failed to do so.
Whether the instruction was erroneous at all—much less plainly so—is doubtful.
Thompson construed § 1014, which criminalizes only “false statement[s],” and held that
the term “false” means “not true” and does not reach statements that are misleading but
accurate. 604 U.S. at 414–15. But the statutes and indictment here sweep more broadly.
Section 1035(a)(1) criminalizes “falsif[ying], conceal[ing], or cover[ing] up by any trick,
scheme, or device a material fact,” while § 1035(a)(2) criminalizes “mak[ing] any
materially false, fictitious, or fraudulent statements or representations.” And the
indictment charged—and the court instructed on—both paragraphs of § 1035(a) in the
disjunctive. Section 1347, under which the challenged definition was delivered, reaches
schemes to obtain money “by means of materially false or fraudulent pretenses,
representations, or promises.” J.A. 881 (emphasis added); 18 U.S.C. § 1347(a)(2). An
instruction that a representation is false “when it constitutes a half-truth or effectively omits
or conceals a material fact, provided it is made with the intent to defraud,” J.A. 882, thus
arguably tracks conduct that these statutes reach, but which § 1014 does not. See Universal
Health Services, Inc. v. United States ex rel. Escobar, 579 U.S. 176, 188–89 (2016).
Because Thompson addressed only § 1014, we cannot say any error in the instruction was
“plain.” But we need not rest there, because even assuming plain error, Joyner cannot show
that it affected his substantial rights.
On plain-error review, Joyner bears the burden to show prejudice to his substantial
rights, not the government. Greer v. United States, 593 U.S. 503, 507–08 (2021); United
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States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998). He must show a reasonable
probability that, without the half-truth language, the outcome would have differed. United
States v. Sherifi, 107 F.4th 309, 317 (4th Cir. 2024). He cannot. The government’s case
did not depend on a half-truth theory. It identified three discrete falsehoods in the
documents Joyner signed: (1) that the beneficiaries were his “patients,” (2) that he would
use the results “to pursue care and treatment” for them, and (3) that the tests were medically
necessary. And it pressed each one as untrue full-stop, not as true-but-misleading. J.A.
829–32. Joyner’s own testimony supplied part of the proof: He admitted he “did not use”
the results at all. J.A. 791. Every count rested on forms containing all three
representations, so a conviction supported by the “pursue care” and medical-necessity
falsehoods stands whatever the jury made of the word “patients.”
Joyner answers with the jury’s mid-deliberation question—“When is someone
considered a patient under a [physician assistant]?” J.A. 898. The note shows the jury
took the “patients” representation seriously. It does not show which path the jury walked
to its verdict. The jury may have found the statement false after applying the ordinary
meaning of “patient,” or it may have convicted on the “pursue care” and medical-necessity
representations, which Joyner’s own testimony established were untrue. The note, in short,
is equivocal. And on plain-error review, equivocal is fatal to Joyner, not to the government:
A defendant does not carry his burden by showing “that it is impossible to tell whether the
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verdict returned by the jury rested solely on the misinstruction.” Hastings, 134 F.3d at 243.
The assumed error therefore does not warrant relief. 10
E. There Was Sufficient Evidence To Convict Joyner
Joyner moved for acquittal, arguing that the evidence was insufficient to prove that
he executed a scheme to defraud or that he made materially false statements. “Defendants
raising a sufficiency challenge bear a ‘heavy burden.’” United States v. Ritter, 167 F.4th
677, 683 (4th Cir. 2026) (quoting United States v. Huskey, 90 F.4th 651, 662 (4th Cir.
2024)). We look at the evidence in the light most favorable to the government and assume
that “the jury resolved all credibility disputes or judgment calls in the government’s favor.”
Huskey, 90 F.4th at 662 (cleaned up). While we review the district court’s denial de novo,
we will sustain the verdict if “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Millender, 970 F.3d
523, 528 (4th Cir. 2020).
Section 1347 required the government to prove that Joyner “knowingly and willfully
execute[d], or attempt[ed] to execute, a scheme . . . to defraud a health care benefit
program . . . in connection with the delivery of or payment for health care benefits.” 18
10
One final matter. We have assumed, without deciding, two errors: that the
prosecution’s rebuttal remark strayed into forbidden territory, and that the half-truth
instruction was improper after Thompson. Considered together, they fare no better than
apart. See United States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002) (recognizing that
the combined effect of individually harmless errors may affect substantial rights). The
assumed errors arose at different stages, were unrelated to one another, and were defused
for independent reasons: the rebuttal remark by its ambiguity and invited character, the
instruction by the verdict’s demonstrated independent basis. Against the weight of the
evidence the jury heard, their combined effect did not deprive Joyner of a fair trial.
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U.S.C. § 1347(a). The jury heard that Joyner, using “plug and play” forms, issued orders
resulting in more than 14,600 genetic tests for some 607 beneficiaries, although he had
spoken with only 20 of them; that the tests were medically unnecessary; that White trained
providers not to order too many at once to avoid being “flagged” in audits; and that the
training cautioned against “no-no words” like “free” and “Medicare.” J.A. 302, 800–01,
1197, 1200. From this evidence, a rational juror could find beyond a reasonable doubt that
Joyner was aware of or willfully blind to his participation in a scheme to defraud Medicare.
The same evidence suffices to support his liability as an aider and abettor. See Moye, 454
F.3d at 398.
Under § 1035(a), the government had to prove that Joyner knowingly and willfully
made materially false statements in connection with the delivery of or payment for
healthcare benefits. 18 U.S.C. § 1035(a). Because the evidence sufficed under
§ 1035(a)(2)’s false-statement prong, we need not consider the government’s proof under
the concealment prong. See supra II.D.2. As explained above, the jury heard that Joyner
represented he would use the test results to pursue care for the beneficiaries and to make
patient-specific clinical decisions, and that he admitted he did not use the results at all.
That evidence permitted a rational jury to find the materially false-statement element
satisfied. Joyner’s insistence that the forms identified him as the “ordering,” not the
“treating,” provider, and that the medical-necessity criteria were disclosed on the forms,
goes to the weight the jury was free to assign the evidence, not to its sufficiency. On this
record, viewed in the light most favorable to the government, the evidence was sufficient.
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F. Resentencing Is Not Warranted
Joyner argues that the district court’s sentence was procedurally unreasonable,
raising three challenges to his Guidelines calculation: the use of $10 million in intended
loss, the mass-marketing enhancement, and the enhancement for use of a special skill or
abuse of a position of trust. We review whether the district court imposed a procedurally
reasonable sentence for abuse of discretion. United States v. Jenkins, 169 F.4th 497, 518
(4th Cir. 2026). And we will not disturb a sentence based on a Guidelines error that is
harmless. United States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017). None of Joyner’s
challenges warrant resentencing.
1. Loss Amount
Section 2B1.1(b)(1) increases a fraud defendant’s offense level according to the loss
amount, defined as the greater of actual or intended loss. U.S.S.G. § 2B1.1 cmt. n.3(A)
(2023). At sentencing, the government acknowledged that Joyner neither helped the
laboratories bill Medicare nor knew how they did so. And it agreed that the claimssubmission evidence was “somewhat speculative.” J.A. 918. The district court nonetheless
held Joyner responsible for those submissions. Finding that Joyner “clearly knew that this
was fraudulent activity he jointly engaged in with others,” and that the laboratories’ billing
was reasonably foreseeable to him, the court set his intended loss at more than $10
million—the full amount that the laboratories had claimed from Medicare. J.A. 922. That
figure produced a corresponding increase in his sentence under § 2B1.1(b)(1), along with
a further increase under § 2B1.1(b)(7), for an offense affecting a government healthcare
program in an amount exceeding $7 million. After adjustments for Joyner’s minor role
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and zero criminal-history points, the court varied downward three levels—from the
intended-loss assessment to the actual-loss assessment—and, after considering Joyner’s
remaining arguments for mitigation, declined any further variance. Joyner does not
contend that intended loss is an impermissible measure of loss under § 2B1.1 as a matter
of law. 11 Nor does he dispute that the roughly $3.6 million that Medicare actually paid on
his orders is attributable to him. Rather, he argues that he could not have reasonably
foreseen the $10 million that the laboratories billed—the intended-loss figure—because he
played no role in submitting bills, had no insight into the laboratories’ billing practices,
and did not know what the laboratories would charge. He argues that the district court
should have attributed only the actual loss amount of $3.6 million.
Because others produced the loss by billing Medicare, the question is governed by
the relevant-conduct principles of U.S.S.G. § 1B1.3(a)(1)(B). In a jointly undertaken
criminal activity, a defendant is accountable for the acts of others that fell within the scope
of the activity he agreed to, that furthered the criminal activity, and that were reasonably
11
Joyner accepts that intended loss is a legally permissible measure under
§ 2B1.1(b). In 2023, the Guidelines commentary, rather than the guideline text itself,
defined “loss” as the greater of actual or intended loss. Because Joyner raises no challenge
to the commentary’s definition, we apply it without deciding what deference it would
command in a different case. We note only that this Court has held the same definition
authoritative under the framework of Kisor v. Wilkie, 588 U.S. 558, 573–76 (2019). United
States v. Boler, 115 F.4th 316, 323–25 (4th Cir. 2024); United States v. Booker, 146 F.4th
332, 348 (4th Cir. 2025). Nothing in our disposition depends on what level of deference
we owe the commentary, a question that the Supreme Court has agreed to consider, see
Beaird v. United States, No. 25-5343, cert. granted, 224 L. Ed. 2d 496 (Apr. 20, 2026),
and one the Sentencing Commission has since mooted prospectively by moving the
definition of “loss” into the guideline text itself, see U.S.S.G. App. C, amend. 827
(effective Nov. 1, 2024).
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foreseeable to him. Id.; see United States v. Bolden, 325 F.3d 471, 499 (4th Cir. 2003).
The government need not prove the loss with precision; “[t]he court need only make a
reasonable estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n.3(C); see United States v. Cloud,
680 F.3d 396, 409 (4th Cir. 2012). We will reverse that estimate only for clear error, and
we find none.
The district court found that Joyner “clearly knew that this was fraudulent activity
he jointly engaged in with others.” J.A. 922. The trial evidence amply supports this
finding. Joyner knew he was one of numerous providers feeding a single pipeline; he was
trained alongside other providers by White and Dr. Smith; and he understood that the
genetic tests he ordered through pre-populated forms would be processed by laboratories
and billed to Medicare, the program every beneficiary file identified as the payer. The
scheme’s entire object was to generate Medicare billings. So the fact that the laboratories
did in fact bill Medicare for the tests that Joyner ordered was not some remote contingency.
Rather, it was the foreseeable—indeed, intended—consequence of the scheme. On these
facts, the district court permissibly attributed the resulting $10 million in billings to Joyner
as reasonably foreseeable conduct in furtherance of the jointly undertaken scheme.
In any event, any error in attributing the $10 million in intended losses rather than
the $3.6 million in actual losses was harmless. A Guidelines error does not require reversal
where the district court would have imposed the same sentence had it resolved the disputed
issue the other way, and the sentence would be reasonable on the defendant’s preferred
calculation. McDonald, 850 F.3d at 643; United States v. Mills, 917 F.3d 324, 330 (4th
Cir. 2019). Both conditions are met. The district court explained that though “the intended
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loss is the loss that should be used under the guidelines, [it] intend[ed] to apply something
other than that.” J.A. 946. In the end, the district court relied on the actual-loss figure “for
purposes of the ultimate sentence.” Id.; J.A. 962 (“And so the Court will initially vary, as
it said it would, from the intended loss assessment to the actual loss assessment,” a threelevel variance). Joyner responds that this variance also credited his role, sentencing
disparities, his community service, his inexperience, and the collateral consequences of
conviction such that—on a correctly calculated range—he would have received a further
reduction. The record forecloses that inference. The court recited each of those mitigation
arguments but expressly grounded the three-level variance in the change from using the
intended-loss figure to the actual-loss figure. The court then concluded that “any further
variance” would not produce a sentence “sufficient to accomplish” the § 3553(a) factors.
J.A. 963. The court cited Joyner’s “callous indifference to the fiduciary responsibilities he
[bore] . . . as a Medicare-enrolled provider” and the “strong need to deter that kind of
criminal conduct.” Id. The court thus identified 72 months as the right sentence on
Joyner’s own preferred loss measure and told us it would go no lower. That’s enough
under McDonald. Finally, a 72-month sentence within the actual-loss range is
substantively reasonable for a fraud of this scale and duration. The loss calculation, even
if presumed erroneous, supplies no basis for resentencing.
2. Mass-Marketing Enhancement
Section 2B1.1(b)(2)(A)(ii) adds two levels where the offense “was committed
through mass-marketing.” The Guidelines define “mass-marketing” as a “plan, program,
promotion, or campaign that is conducted through solicitation by telephone, mail, the
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Internet, or other means to induce a large number of persons” to purchase goods or services.
U.S.S.G. § 2B1.1 cmt. n.4(A). The district court applied the enhancement, concluding that
the scheme was conducted through mass-marketing and that the mass-marketing was
reasonably foreseeable to Joyner, who participated in training addressing patient
recruitment and referenced marketing in his communications.
Joyner raises two objections: that the mass-marketing was not reasonably
foreseeable to him, and that the enhancement cannot apply because any marketing targeted
Medicare beneficiaries rather than Medicare itself, the only victim of the fraud.
The foreseeability objection fails for reasons already given. Like the loss
enhancement, the mass-marketing enhancement applies based on relevant conduct,
reaching acts of others within the scope of the jointly undertaken activity that were in
furtherance of it and reasonably foreseeable. U.S.S.G. § 1B1.3(a)(1)(B). The district court
found that the recruitment of beneficiaries through telephone solicitation was foreseeable
to Joyner, and the record supports that finding: The operation could not function without
a steady supply of beneficiaries to be tested, the means of obtaining them was no secret to
the providers trained to process their files, and Joyner himself was trained on
documentation tied to that recruitment. That finding was not clearly erroneous.
Joyner’s other objection asks us to decide for the first time whether the massmarketing must be directed at the victims of the offense. The commentary defines “massmarketing” as a “plan, program, promotion, or campaign . . . conducted through
solicitation by telephone, mail, the Internet, or other means to induce a large number of
persons” to purchase goods or services. U.S.S.G. § 2B1.1 cmt. n.4(A). Joyner reasons that
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because the Guidelines separately define a “victim” as a person who sustained part of the
actual loss, id. cmt. n.1, and because Medicare was the only entity that sustained a loss
here, the enhancement cannot apply to marketing aimed at beneficiaries who were not
themselves victims. He invokes decisions from two other circuits requiring that the massmarketing target the offense’s victims. See United States v. Lacey, 699 F.3d 710, 714–15
(2d Cir. 2012); United States v. Miller, 588 F.3d 560, 568 (8th Cir. 2009). We are
unpersuaded and hold that the enhancement does not require victim-directed massmarketing. 12
We are guided by the text in reaching this conclusion. The enhancement applies
when the offense “was committed through mass-marketing,” U.S.S.G.
§ 2B1.1(b)(2)(A)(ii), language that describes the means by which the offense was carried
out, not whom the scheme solicited. The commentary’s definition 13 reaches a campaign
“to induce a large number of persons”—not “victims”—to “purchase goods or services.”
12
In holding that the enhancement does not require victim-directed mass-marketing,
we do not suggest the solicited beneficiaries were unharmed. The district court observed
that the medically unnecessary tests Joyner ordered may impair some beneficiaries’ ability
to obtain those tests when genuinely needed. J.A. 963. But the Guidelines define “victim”
for these purposes as one who “sustained any part of the actual loss” or “bodily injury,”
U.S.S.G. § 2B1.1 cmt. n.1. So our point is not that the beneficiaries did not suffer; it is that
the enhancement’s text does not confine “mass-marketing” to solicitation of those who fit
the Guidelines’ definition of “victim.”
13
Both parties accept the commentary’s definition of “mass-marketing.” Because
no party contends the definition exceeds the guideline it interprets, we apply it without
addressing what deference it would otherwise command. See supra note 11.
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Id. cmt. n.4(A) (emphasis added). 14 We will not read in a limitation the Commission
omitted. That the Guidelines elsewhere use “victim” only underscores the point: The
Commission used the word “victim” where it meant victim, and “persons” where it meant
persons. Had it intended the mass-marketing enhancement to turn on the number of
victims, it knew how to say so.
Section 2B1.1(b)(2)’s structure supports this reading. Subsection (b)(2)(A) supplies
three independent triggers: the number of victims, the means of committing the offense
(mass-marketing), or a victim’s suffering substantial financial hardship. Subsections (B)
and (C) escalate based on the number of victims who experienced substantial financial
hardship. U.S.S.G. § 2B1.1(b)(2). Reading the mass-marketing clause to require victimdirected solicitation would collapse it into the victim-counting clause beside it. 15
We do not discount the contrary reasoning. The Second Circuit reads § 2B1.1(b)(2)
as a unified measure of “the scope of the wrong by the number of victims,” with massmarketing relevant “because fraudulent mass-marketing creates a large number of potential
victims.” Lacey, 699 F.3d at 715. But that rationale—if we can elevate it above the
14
Nor does it matter that Medicare, not the beneficiaries, paid for the tests. The
solicited beneficiaries were induced to obtain—to “purchase”—genetic-testing services;
that Medicare footed the bill makes the beneficiary no less the acquirer of the service and
the solicitation no less the engine of the sale.
15
Our conclusion accords with the decisions of two other circuits that have applied
the enhancement to healthcare schemes of this structure. The Fifth and Eleventh Circuits
have sustained the enhancement where a defendant was integrally involved in, or where
the scheme depended upon, the mass solicitation of beneficiaries whose treatment was
billed to a defrauded payer. See United States v. Isiwele, 635 F.3d 196, 204–05 (5th Cir.
2011); United States v. Mauskar, 557 F.3d 219, 232–33 (5th Cir. 2009); United States v.
Moran, 778 F.3d 942, 976 (11th Cir. 2015).
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Guidelines’ text and structure—applies with equal force here, because the thousands of
beneficiaries the scheme solicited “avoided financial loss only because the government as
their insurer ultimately bore the cost of the deception.” Id. at 716. We therefore part ways
with the Second and Eighth Circuits and align with the Fifth and Eleventh, which have
applied the enhancement to healthcare schemes of this structure. See Isiwele, 635 F.3d at
204–05; Mauskar, 557 F.3d at 232–33; Moran, 778 F.3d at 976.
3. Special Skill/Abuse of a Position of Trust
Finally, the district court applied a two-level enhancement under U.S.S.G. § 3B1.3,
finding both that Joyner abused a position of trust and that he used a special skill—his
physician-assistant licensure—in a manner that significantly facilitated the commission of
the offense. J.A. 928–29. The enhancement applies “[i]f the defendant abused a position
of public or private trust, or used a special skill, in a manner that significantly facilitated
the commission or concealment of the offense.” U.S.S.G. § 3B1.3 (emphasis added). By
its own terms, the two prongs are independent: Either, standing alone, supports the
enhancement.
We affirm without reaching the special-skill prong, because Joyner has not
contested the alternative ground—abuse of a position of trust—on which the district court
independently grounded the enhancement. His opening brief challenges only the specialskill prong; it does not argue that the district court erred in finding that he abused a position
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of trust. 16 An argument not raised in an opening brief is forfeited, and we treat it as such
here. See United States v. Walton, 145 F.4th 476, 489 (4th Cir. 2025); Fed. R. App. P.
28(a)(8)(A). Because the unchallenged abuse-of-trust finding independently supports the
enhancement under § 3B1.3, we affirm its application without reaching the special-skill
question. 17
* * *
Joyner’s defense was that he was a small player in someone else’s fraud—a guileless
provider who trusted seasoned professionals and never saw the scheme for what it was.
The jury was entitled to accept that defense. But it rejected it. Nothing Joyner raises on
appeal disturbs that verdict or the sentence built on it. The rulings he challenges were
within the district court’s discretion, the errors we have assumed did him no harm, and the
findings underlying his sentence were not clearly erroneous. “A defendant is entitled to a
fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619 (1953). Joyner
received just that. The judgment of the district court is
AFFIRMED.
16
On reply, Joyner argues that the opening brief’s statement of issues raised the
issue. But an issue statement is not argument. See Grayson O, 856 F.3d at 316.
17
Even so, there are reasons to think that the district court’s finding would survive
even if we proceeded on the merits. Section 3B1.3’s commentary describes a “special
skill” as one “not possessed by members of the general public and usually requiring
substantial education, training or licensing,” offering “doctors” and other licensed
professionals as examples. U.S.S.G. § 3B1.3 cmt. n.4. The genetic-test orders at the heart
of this scheme could be executed only by a licensed medical provider; that is why the
operation needed Joyner. He used the very credential that distinguished him from the
public—his physician-assistant license—to supply the authorizing signatures without
which the scheme could not bill Medicare.
41