United States of America v.  Abdorasool Janati; Forouzandeh Janati

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 04-4081 
ABDORASOOL JANATI; FOROUZANDEH
JANATI,
Defendants-Appellees. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-03-433)
Argued: May 7, 2004
Decided: July 9, 2004
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Niemeyer wrote the opinion, in which Judge Michael and
Judge Traxler joined.
COUNSEL
ARGUED: Steve Alan Linick, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant. Eric Lloyd Yaffe, SCHMELTZER, APTAKER
& SHEPARD, P.C., Washington, D.C., for Appellees. ON BRIEF:
Paul J. McNulty, United States Attorney, Thomas H. McQuillan,

-- 1 of 16 --

Assistant United States Attorney, Alexandria, Virginia, for Appellant.
Martin J. Gaynes, Roland B. Ninomiya, SCHMELTZER, APTAKER
& SHEPARD, P.C., Washington, D.C., for Appellee Abdorasool
Janati; David Schertler, Barry Coburn, COBURN & SCHERTLER,
Washington, D.C., for Appellee Forouzandeh Janati.
OPINION
NIEMEYER, Circuit Judge:
The government filed this interlocutory appeal during the course of
a complex healthcare fraud prosecution, requesting that it be given
what it contends is the necessary evidentiary latitude to prove its case.
Dr. Abdorasool Janati and his wife, Forouzandeh ("Suzie") Janati,
have been indicted for a conspiracy in Northern Virginia from 1996
to 2003 to defraud the United States and private insurance plans of
funds for medical reimbursement by submitting to Medicare and the
private plans false claims for services allegedly performed by Dr.
Janati and others in his neurology practice. In addition to the conspir-
acy count, Dr. and Mrs. Janati have been indicted in 61 additional
counts alleging overt acts, representing some, but not all, of the crimi-
nal conduct allegedly undertaken in furtherance of the conspiracy.
On the district court’s insistence that the government present its
case in three days, the government noted that it could do so through
the introduction of charts prepared under Federal Rule of Evidence
1006 and through "summary witnesses." It explained that the charts
and witnesses would condense the evidence necessary to present to
the jury approximately 1300 individual reimbursement claims that
were made in furtherance of the conspiracy and in support of the spe-
cific overt acts alleged in Counts 2-62 of the indictment. Concerned
about the length, scope, and complexity of the trial, the district court
ruled that the government could use charts in its case-in-chief, but it
could not refer in those charts or in testimony to any of the 1300
transactions within the scope of the conspiracy that were not alleged
as overt acts:
2 UNITED STATES v. JANATI

-- 2 of 16 --

[T]he charts in their case in chief could not contain any ref-
erence to those additional items that are not permitted in
their case in chief [to prove the 61 overt acts], obviously.
Neither charts or testimony or anything else about those
additional [1300] claims.
Those would only become important, depending on what
the defendant might testify to, they could be used in rebuttal.
But the court also ruled that co-conspirators and others could "testify
to the conspiracy they saw." The court reiterated, however, that the
parties would be held to three days each in the presentation of their
cases.
The government contends that "the district court abused its discre-
tion in preventing the government from introducing in its case-in-
chief pattern-and-practice evidence showing that the Janatis submitted
approximately 1,300 false claims (including the 61 false claims
charged in the indictment) to Medicare and other insurers during the
alleged conspiracy."
To the extent that the district court limited the government to proof
of the conspiracy in its case-in-chief to the overt acts alleged in
Counts 2-62 of the indictment, we reverse. Otherwise, we do not con-
clude that the district court abused its broad discretion to manage the
scope of this large conspiracy case. We therefore affirm in part,
reverse in part, and remand with instructions.
I
Dr. Janati, together with his wife, have for ten years operated a
healthcare clinic known as the Neurological Institute of Northern Vir-
ginia, P.C., which has been engaged in the business of providing neu-
rological testing and evaluations to patients. Over the period from
1996 through 2003, the Neurological Institute typically generated on
a given day between 20 and 30 claims for reimbursement from Medi-
care and private insurance plans, involving the submission of thou-
sands of claims and generating as much as $75,000 per month in
gross proceeds.
3 UNITED STATES v. JANATI

-- 3 of 16 --

In September 2003, the Janatis were indicted for healthcare fraud.
The indictment, containing one count for conspiracy for the period
1996 through 2003 and 61 counts for overt acts in furtherance of the
conspiracy during the period 2000 through 2002, alleges that the
Janatis submitted false claims by overstating the services provided by
Dr. Janati and Dr. Mian Li, a fellow neurologist at the Neurological
Institute. Three types of false billing are represented in the indict-
ment: claims that the Janatis (1) inflated the number of nerve conduc-
tion tests performed for patients, (2) billed but did not perform certain
brain wave studies, and (3) "upcoded" office visits, falsely stating that
the visit involved a complex medical diagnosis or procedure unsup-
ported by the medical records.
The government has indicated in pretrial proceedings that, of
approximately 1600 patient files that it examined from the Neurologi-
cal Institute, it found that there was evidence of false billing in 1300,
or more than 80% of those reviewed, resulting in losses of hundreds
of thousands of dollars to Medicare and the other insured plans. Much
of the government’s proof will depend on the testimony of experts
who have compared the medical records for patients of Dr. Janati and
Dr. Li with the patients’ billing records and who intend to give their
opinions that the billing records overstate the work performed.
The district court has already conducted four pretrial conferences,
and during the first conference, on November 21, 2003, the court,
obviously concerned about the length and complexity of a trial, told
counsel for the parties that "I am certainly not going to sit and listen
to a thousand witnesses come through about a thousand case files.
And I don’t know how you plan to summarize this, but we may have
to consider some kind of a severance and get this down to some kind
of manageable piece of work to deal with." The government assured
the court, "We plan to use summary charts extensively in this case
because we recognize the volume of the documents and so forth. So,
we are well aware of the constraints on the Court’s time and so forth."
A few days later, the government submitted a paper to the court
and opposing counsel, giving notice of its intent to offer summaries
of voluminous evidence pursuant to Federal Rule of Evidence 1006.
In this paper, the government stated that it intended to call no more
than 12 patients as witnesses; that it anticipated extensive use of sum-
4 UNITED STATES v. JANATI

-- 4 of 16 --

mary charts, which it intended to offer into evidence in its case-in-
chief to prove the scope and extent of the conspiracy alleged in Count
1. The government indicated that because the Janatis intended to
defend the case by blaming two billing employees who worked for
the Neurological Institute between 2000 and 2003, it would have to
prove "over 1000 instances" of fraud between 1996 and 2002 to show
that the criminal conduct was widespread, intentional, and preceded
the time when the two employees worked for the Janatis. Dr. Janati
opposed the government’s plan, filing a motion to preclude the gov-
ernment from using charts "to introduce expert opinions with respect
to the contents of up to one thousand unique patient files."
At the second pretrial hearing, on December 12, 2003, the district
court indicated that it was denying Dr. Janati’s motion to exclude the
government’s use of summary charts, but without prejudice to objec-
tions that the Janatis might make at trial. The court stated, "I will lis-
ten to what specifics you may have once I see the charts and what
they attempt to do with them in light of what evidence we have at the
time." The court confirmed this ruling with a written order dated
December 15, 2003.
At the third pretrial conference, on January 15, 2004, Dr. Janati
expressed concern that the government was intending to prove trans-
actions beyond the 61 overt acts alleged in the indictment, involving
more than 1000 files relating to patient visits:
Our concern is not just the length of time it would take —
You know, we could be here until Christmas trying to
defend this case on each of these other thousand. But it
would be extraordinarily prejudicial, I don’t know how the
Government ultimately would intend to put on these other
supposed thousand instances of misconduct. And we don’t
think it is in any way proper in the case.
In response, the government noted that the conspiracy covered seven
years and that the overt acts alleged in Counts 2-62 related only to
misconduct occurring during 2000 through 2002. The government’s
attorney pointed out that if the government were denied the right to
prove acts other than the 61 overt acts alleged in the indictment, "then
we won’t be able to show that there was misconduct occurring
5 UNITED STATES v. JANATI

-- 5 of 16 --

between ’96 and 2000." The court indicated to the parties that it was
not making any ruling about the admissibility of the charts at that
time. But it expressed concern about the government’s proving overt
acts other than those alleged in the indictment: "It seems to me if you
have got an indictment, the evidence ought to conform to the indict-
ment you have got here. And you just don’t simply find whatever evi-
dence you have got out there and — I mean, people can’t be on notice
of what they are charged with and what they have to defend that
way." After thinking out loud with the attorneys, the court observed,
"I don’t understand why you didn’t go back and pick up some of these
counts that you wanted to go forward with and overt acts that you
wanted to go forward with and bring them all through the conspiracy
and have them charged out." When the government pointed out that
it was not required to allege all the overt acts but was permitted to
prove as part of the conspiracy count the transactions within the scope
of the conspiracy, the court observed, "This case is almost out of hand
and out of control. There is an increasing temptation in both civil and
criminal cases to blow these cases up to where they get unmanageable
and almost untriable." The court then suggested paring the case down
by severing five counts from the case and trying them first, giving the
government two days to put on its case.
Following the conference, the government filed an opposition to
the court’s proposed severance, arguing that "[t]o meet its burden of
proof, the government intends to introduce evidence through . . . sum-
mary witnesses showing that the Janatis submitted over a thousand
other false claims between 1996 and 2003 which repeated the same
fraudulent billing practices." It argued that by using summary charts,
it could present evidence relating to the other transactions quickly and
without much explanation. In response, Dr. Janati pointed out that
each patient file "concerns a different visit(s) by a different patient
suffering from a different medical condition," and that he would have
to present a defense with respect to each file. Dr. Janati concluded
that
the Government should not be allowed to present summary
charts of 1000 patient visits not even listed in the Indict-
ment. Defendants should not be forced to conduct — and
the jury and this Court should not be required to endure —
6 UNITED STATES v. JANATI

-- 6 of 16 --

the case-by-case examination of those visits that will be
required if the charts are admitted.
The district court conducted the final pretrial conference on Janu-
ary 20, 2004, during which the court indicated that it would permit
the government to prove in its case-in-chief only the 61 overt acts as
part of the conspiracy and that it would relegate the government’s
charts and testimony with respect to the thousand other transactions
to rebuttal, depending on what the Janatis presented. The court indi-
cated that it would allow such charts and testimony to be used only
"in the event they became material in rebuttal." The court did say,
however, that it would permit co-conspirators and others to testify "to
the conspiracy they saw." The court also returned to its time concern,
stating, "You-all are going to be held to three days now. Keep your
case down to the three days."
From the district court’s oral ruling at this fourth conference, the
government filed a notice of appeal pursuant to 18 U.S.C. § 3731
(authorizing a pretrial appeal "from a decision or order of a district
court suppressing or excluding evidence").
II
In the context of pretrial conferences in which the district court
outlined how it intended to conduct a complex, multi-transactional
trial, the district court’s rulings were hardly definitive. Nonetheless,
we agree that as matters were left in the fourth pretrial conference, the
court expressed its intent to proceed at trial by permitting the govern-
ment to use summary charts to prove the 61 overt acts alleged in
Counts 2-62 and then permitting the government to use charts and tes-
timony relating to the other 1300 transactions only in rebuttal to Dr.
Janati’s case. The court’s ruling in the fourth conference was one of
several efforts made by the district court to find a satisfactory method
to manage this complex case involving an alleged seven-year conspir-
acy, thousands of transactions, 61 separate counts of healthcare fraud,
and 14 private insurance company victims. The district court was
clearly concerned about losing control of the case. From the court’s
point of view, therefore, it wanted to try the case efficiently —
indeed, quickly — by streamlining the evidence and allowing each
party three days before the jury.
7 UNITED STATES v. JANATI

-- 7 of 16 --

The government, on the other hand, became deeply concerned that
it could not prove the full breadth of the conspiracy if limited to the
61 counts, which relate to only three years of the conspiracy, and that
it would fail to prove intent because the 61 counts were only exam-
ples of the three types of fraud that the Janatis would try to explain
as aberrational mistakes by employees. To prove the full seven-year
conspiracy, the government wants to show that there was a pattern
and practice of conduct that revealed the requisite fraudulent intent.
The government also explained its dilemma of having to choose
between charging too many counts, which could be considered "over-
kill," and too few, which would fail to establish its difficult burden
of proof. See United States v. Tran Trong Cuong, 18 F.3d 1132, 1142
(4th Cir. 1994) (stating that the government engaged in a "classic
example of ‘overkill’" in bringing a 136-count indictment for viola-
tion of the Controlled Substances Act by a physician when "56 counts
[would have been] enough to satisfy the prosecutor and to provide
proper punishment of a defendant if convicted" and the remaining 80
counts had less evidentiary support).
The Janatis became concerned with the proposal to present large
quantities of allegedly repetitious evidence that they claimed would
be "prejudicial." They envisioned the necessity of mounting a defense
with respect to every case-file presented by the government to explain
how any alleged overbilling occurred. In support of their position, the
Janatis contended that the government was not entitled to prove any
overt acts other than those alleged in Counts 2-62, a position with
which the district court agreed by the time of the fourth pretrial con-
ference.
Thus, we are faced with the amorphous question of whether the
district court has abused its discretion with its preliminary, but not
necessarily final, ruling made during a pretrial conference to manage
this complex case. It is obvious that since the trial has not commenced
and no evidence has actually yet been denied, the district court
remains free to continue its efforts to manage this case to make it tri-
able and understandable to the jury, while still providing fairness to
the parties. But because the government may not appeal after jeop-
ardy has attached, it is necessary to resolve in this appeal any limita-
tions placed on the government’s case-in-chief. See 18 U.S.C. § 3731.
8 UNITED STATES v. JANATI

-- 8 of 16 --

In this context, there are multiple issues presented by the district
court’s pretrial rulings which both the district court and the parties to
this case have tended to blur. Accordingly, we will review the compo-
nent issues as follows: (1) whether the government may prove in its
case-in-chief acts in furtherance of the conspiracy alleged in Count 1
even if those acts are not alleged as overt acts in Counts 2-62; (2)
whether the government can use Rule 1006 charts in its case-in-chief
to present its experts’ conclusions about fraud with respect to some
1300 transactions alleged in furtherance of the conspiracy; and (3) the
appropriate balance that must be achieved between the district court’s
discretionary right to limit the government’s case and the govern-
ment’s right to prove its case. We will address these issues seriatim.
A
First, we reject the Janatis’ contention and reverse the district
court’s ruling that the government is limited during its case-in-chief
on the conspiracy count to proving the overt acts alleged in Counts
2-62. It is well established that when seeking to prove a conspiracy,
the government is permitted to present evidence of acts committed in
furtherance of the conspiracy even though they are not all specifically
described in the indictment. See United States v. Powers, 168 F.3d
741, 749 (5th Cir. 1999) ("[W]here a conspiracy is charged, acts that
are not alleged in the indictment may be admissible as part of the
Government’s proof") (citing United States v. Coleman, 78 F.3d 154,
156 (5th Cir. 1996); United States v. Quesada, 512 F.2d 1043, 1046
(5th Cir. 1975); and United States v. Bullock, 451 F.2d 884, 889 (5th
Cir. 1971)); United States v. Lewis, 759 F.2d 1316, 1344 (8th Cir.
1985) ("This Court has previously held that in conspiracy cases, the
government is not limited in its proof to establishing the overt acts
specified in the indictment") (citing United States v. Ruiz-Altschiller,
694 F.2d 1104, 1109 (8th Cir. 1982); and United States v. Sellers, 603
F.2d 53, 56 (8th Cir. 1979)); United States v. Gold, 743 F.2d 800, 813
(11th Cir. 1984) ("Properly understood . . . a [fatal] variance exists
where the evidence at trial proves facts different from those alleged
in the indictment, as opposed to facts which, although not specifically
mentioned in the indictment, are entirely consistent with its allega-
tions").
The Janatis argued to the district court that "these 1000 instances
[are] well beyond the counts of the indictment" and will be prejudicial
9 UNITED STATES v. JANATI

-- 9 of 16 --

under Federal Rule of Evidence 403. But the indictment in this case
charges a conspiracy over a period "[b]eginning in or about 1996 and
continuing through in or about 2003" to defraud the United States and
healthcare benefit programs by falsifying HCFA-1500 claim forms.
While the indictment specifically alleges 61 overt acts, they are
alleged "among others." It is these other overt acts not alleged in
Counts 2-62 that the government proposes to prove through charts
and summary witnesses at trial. Assuming that the indictment is a
proper indictment, we believe that its allegations are sufficiently
broad to cover transactions other than the 61 specifically alleged as
overt acts, so long as they are in furtherance of the conspiracy.
Although the Janatis have not challenged the indictment itself, the
Fifth and Sixth Amendments require that a criminal defendant be
charged with an indictment and that he "be informed of the nature and
cause of the accusation" leveled against him. U.S. Const. amend. V
& VI. This requirement is satisfied so long as the indictment provides
a defendant with "fair notice of the elements of the offense with
which he is charged and sufficient detail so that he can plead an
acquittal or a guilty verdict as a bar to a subsequent prosecution for
the same offense." United States v. Jackson, 327 F.3d 273, 290 (4th
Cir. 2003) (citing Hamling v. United States, 418 U.S. 87, 117 (1974);
United States v. Carrington, 301 F.3d 204, 209-10 (4th Cir. 2002)).
As long as the indictment provides this notice and detail, evidence
necessary to prove its allegations is relevant in the criminal trial on
the indictment.
In the present case, the indictment brought by the government read-
ily meets these requirements. The indictment placed the Janatis on
notice that they were being charged with conspiracy to commit
healthcare fraud over a specified period involving specified types of
false claims against the United States and private plans. And the gov-
ernment identified in the indictment 61 representative overt acts in
furtherance of this alleged conspiracy, alleging that they were "among
others." The government has also, as part of the pretrial proceedings,
proffered evidence of the specific transactions on which it intends to
rely in proving the conspiracy count. In these circumstances, we reject
the argument that, in proving Count 1 of the indictment, the govern-
ment can be limited to proving the overt acts alleged in Counts 2-62,
and we reverse the district court’s ruling to that effect.
10 UNITED STATES v. JANATI

-- 10 of 16 --

B
The government contends also that it should be permitted to use
evidence summarized in charts pursuant to Federal Rule of Evidence
1006 to prove the 1300 transactions. The government proposes to list
in these charts transactions contained in the Janatis’ billing and medi-
cal records and to present in them expert opinion testimony as to why
each listed transaction represents a fraudulent healthcare claim. Spe-
cifically, the government intends to incorporate the testimony of
experts as follows:
Based on a comparison of the number of nerve tests docu-
mented in the patients’ medical files with the number of
nerve tests that appeared on the Janatis’ bills, Dr. [David]
Preston will testify that the bills reflected more nerve tests
than were reflected in the patients’ files. . . . Similarly, to
prove that the Janatis upcoded office visit claims, a medical
coding expert, Debra Pacha, has reviewed the documenta-
tion contained in hundreds of patient medical files to deter-
mine whether such documentation supports the Janatis’
billings under CPT code 99215, the most expensive office
visit code. Based on this review, Ms. Pacha will testify that
the medical documentation does not support the Janatis’
bills.
The Janatis respond that the district court properly limited the
charts to rebuttal, particularly since the government, though alleging
a conspiracy from 1996-2003, charges no pre-2000 conduct in Counts
2-62:
Without evidence of such conduct, the Government
expresses a concern that the jury will be left with the "mis-
impression" that the Janatis have been "overcharged," which
— according to the Government — may prejudice the pros-
ecution. This statement is both remarkable and implausible.
It is remarkable because the Government itself drafted the
Indictment and elected to exclude pre-2000 conduct. And it
is implausible because the Indictment already covers three
years and sixty-one counts.
11 UNITED STATES v. JANATI

-- 11 of 16 --

The Janatis also argue that the summary charts would provide inde-
pendent evidence and not a summary of the evidence, and therefore
would be both inappropriate under Rule 1006 and prejudicial. They
argue, "Even if the Government could show some small amount of
legitimate prejudice [for being denied the use of these charts], that
prejudice is dwarfed by what the Janatis would suffer if forced to
defend against one thousand allegedly false claims above and beyond
the sixty-one already charged in the Indictment." The Janatis contend
that the government already would have sufficient evidence of intent
without having to use the charts. Finally, the Janatis complain that the
charts would contain opinion evidence and therefore would fall out-
side the scope of Federal Rule of Evidence 1006, which is designed
to summarize voluminous evidentiary writings, not opinions.
The district court has not yet ruled on any specific summary chart
that has been proposed, but has indicated that any charts referring to
acts beyond those charged in Counts 2-62 should be presented on
rebuttal, responding apparently to several of the Janatis’ fears. The
court’s ruling limiting the charts’ use to rebuttal might only be tenta-
tive, but if not, it is too restrictive. The district court’s concern grew
out of the parties’ conceptual confusion about how charts may be
used at trial, which may have blurred an understanding by the court
of their proper use.
First, Rule 1006 is a rule to admit charts into evidence as a surro-
gate for underlying voluminous records that would otherwise be
admissible into evidence. The Rule reads:
The contents of voluminous writings, recordings, or photo-
graphs which cannot conveniently be examined in court may
be presented in the form of a chart, summary, or calculation.
The originals, or duplicates, shall be made available for
examination or copying, or both, by other parties at reason-
able time and place. The court may order that they be pro-
duced in court.
The purpose of this Rule is to reduce the volume of written docu-
ments that are introduced into evidence by allowing in evidence accu-
rate derivatives from the voluminous documents. See United States v.
Bakker, 925 F.2d 728, 736 (4th Cir. 1991).
12 UNITED STATES v. JANATI

-- 12 of 16 --

To comply with this Rule, therefore, a chart summarizing evidence
must be an accurate compilation of the voluminous records sought to
be summarized. 31 Charles Alan Wright & Victor James Gold, Fed-
eral Practice and Procedure § 8043, at 525 (1st ed. 2000). Moreover,
the records summarized must otherwise be admissible in evidence. 31
id. § 8043, at 521-22. While the Rule does not require that the under-
lying documentation actually be introduced into evidence, it does
require that the documents be made available to the opposing party
for examination and copying at a reasonable time and place. Fed. R.
Evid. 1006. Finally, under the rule, the trial court can require that the
underlying documents actually be brought to court. Id.; 31 Wright &
Gold, supra, § 8042, at 519-20. The obvious import of these provi-
sions is to afford a process to test the accuracy of the chart’s summa-
rization.
Because the underlying documents need not be introduced into evi-
dence, the chart itself is admitted as evidence in order to give the jury
evidence of the underlying documents. See Bristol Steel & Iron Works
v. Bethlehem Steel Corp., 41 F.3d 182, 190 (4th Cir. 1994). In this
respect, Rule 1006 summary charts are distinguishable from other
charts and summaries that may be presented under Federal Rule of
Evidence 611(a) to facilitate the presentation and comprehension of
evidence already in the record. See Fed. R. Evid. 611(a); see also 4
Weinstein’s Federal Evidence § 611.02[2][a][vii] (Joseph M.
McLaughlin ed., 2d ed. 2003). These "pedagogical" devices are not
evidence themselves, but are used merely to aid the jury in its under-
standing of the evidence that has already been admitted. See 6 Wein-
stein’s Federal Evidence, supra, § 1006.04[2]. Thus, pedagogical
charts or summaries may include witnesses’ conclusions or opinions,
or they may reveal inferences drawn in a way that would assist the
jury. 6 id. § 1006.04[2], at 1006-10 to 1006-11. But displaying such
charts is always under the supervision of the district court under Rule
611(a), and in the end they are not admitted as evidence.
Thus, the opinion of expert witnesses can be summarized on peda-
gogical charts, subject to regulation under Rule 611(a). And these
charts may draw on authority granted under Federal Rules of Evi-
dence 703 and 705, summarizing data on which experts in the case
have relied or summarizing the expert’s opinions. See Fed. R. Evid.
703; Fed. R. Evid. 705. Whenever pedagogical charts are employed,
13 UNITED STATES v. JANATI

-- 13 of 16 --

however, the court should make clear to the jury that the charts are
not evidence themselves, but are displayed to assist the jury’s under-
standing of the evidence. Rule 1006 charts, by contrast, are admitted
into evidence as a surrogate for voluminous writings that are other-
wise admissible.
The district court has not definitively ruled on any charts, express-
ing at the fourth pretrial conference:
I have told the Government that in principle they may use
summary charts. I don’t know whether they are admissible
or they are not admissible. We will have to look at the charts
when they come.
The court’s general ruling that charts may be used, leaving specified
rulings on them until later, does not constitute an abuse of discretion,
and on this we affirm.
C
Finally, we address the appropriate balance between the district
court’s right to manage trials and the government’s right to prove its
case.
The scope of the district court’s discretion to manage trials before
it is and must be particularly broad. Accordingly, we have held,
among other things, that district courts have wide-ranging control
over management of their dockets, the courtroom procedures, and the
admission of evidence. For instance, district courts have discretion to
require separate trials for criminal defendants charged in a single
indictment, see United States v. Riley, 991 F.2d 120, 125 (4th Cir.
1993); United States v. Schell, 775 F.2d 559, 569 (4th Cir. 1985), to
manage discovery, see United States ex rel. Becker v. Westinghouse
Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002); Lone Star
Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th
Cir. 1995), to fix the length of a jury trial, see Sims v. ANR Freight
Sys., Inc., 77 F.3d 846, 849 (5th Cir. 1996); Borges v. Our Lady of
the Sea Corp., 935 F.2d 436, 442-43 (1st Cir. 1991); Flaminio v.
Honda Motor Co., 733 F.2d 463, 473 (7th Cir. 1984), to balance the
14 UNITED STATES v. JANATI

-- 14 of 16 --

right of public access to trial proceedings against the parties’ privacy
rights, see Under Seal v. Under Seal, 326 F.3d 479, 485-86 (4th Cir.
2003), to decide whether granting a recess or continuance is war-
ranted in a given circumstance, see United States v. Singleton, 107
F.3d 1091, 1099 (4th Cir. 1997); United States v. Colon, 975 F.2d
128, 130 (4th Cir. 1992), to regulate the admission of evidence, see
United States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004); United
States v. Castner, 50 F.3d 1267, 1272 (4th Cir. 1995), to limit the type
and number of witnesses brought at trial, see United States v.
Escamilla, 467 F.2d 341, 348 (4th Cir. 1972), and to place limitations
upon the cross-examination of such witnesses, see Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986); United States v. Turner, 198 F.3d
425, 429 (4th Cir. 1999).
Subject to the district court’s reasonable management of cases
brought to the court for trial, the government too has broad discretion
to prosecute crimes, probably limited otherwise only by an unconsti-
tutional motive. See Wayte v. United States, 470 U.S. 598, 607-08
(1985). Moreover, when the government prosecutes a conspiracy
involving a series of crimes — alleged by the government in this case
to number more than 1300 — the government must be given addi-
tional latitude during trial to carry its burden of proof. Similarly,
when it is faced with a difficult task of proving implied intent, it must
also be given some extra latitude to distinguish purposeful conduct
from mistake. But even as these special circumstances suggest a lon-
ger and more complex trial, we have recognized that the govern-
ment’s right must still have limits. See, e.g., United States v. Tran
Trong Cuong, 18 F.3d 1132, 1141-42 (4th Cir. 1994) (admonishing
the government for bringing a 136-count indictment instead of 56-
count indictment).
In this case, the government has recognized the problem created by
attempting to prove a seven-year conspiracy involving thousands of
transactions and has proposed to employ summaries and charts as
authorized by Rules 1006 and 611(a). And, in principle, the district
court has agreed with the government’s proposal. But to the extent
that the district court finds it necessary to deny the government the
use of summary evidence during its case-in-chief, it must accord the
government the right in some manner and to some reasonable extent
to prove its case the long way. Healthcare fraud is difficult to prove,
15 UNITED STATES v. JANATI

-- 15 of 16 --

but trials for such fraud, when allegedly committed over a long period
of time, are also difficult to manage. They typically involve numerous
individual transactions that form part of a larger crime, extending
over a period of years. Consequently, these cases often consume more
judicial time and resources than typical single-transaction crimes. See,
e.g., United States v. Thurston, 358 F.3d 51, 60 (1st Cir. 2004) (3-
week healthcare fraud trial); United States v. Vest, 116 F.3d 1179,
1182 (7th Cir. 1997) (55-day healthcare fraud trial); United States v.
Rutgard, 108 F.3d 1041, 1048 (9th Cir. 1997) (5-month healthcare
fraud trial); United States v. Daniels, 188 F.Supp.2d 1309, 1313 (D.
Kan. 2001) (2-month healthcare fraud trial). At bottom, the district
court is charged with the often difficult task of finding a balance
between the need to give the government an opportunity to carry its
heavy burden and the need to conduct an efficient and accurate trial
that is comprehensible by a jury.
During the course of the four pretrial conferences in this case, the
court has already recognized and accepted the government’s proposed
use of summary charts and summary witnesses to make the trial more
efficient. While the court did indicate in its last conference that charts
referring to acts beyond the 61 charged in the indictment would be
limited to rebuttal, a ruling that ultimately would be too restrictive,
the court was not presented with any particular chart on which to rule,
and it has not yet excluded any chart. While some charts might be
useful on rebuttal, we recognize that the government has the right and
the burden to prove in its case-in-chief a conspiracy broader than the
individual overt acts alleged in Counts 2-62 and that therefore the dis-
trict court must give the government a reasonable opportunity to carry
this burden. Moreover, the district court must recognize that implied
intent is a difficult element to prove, particularly when the defense
intends to argue that any overbilling resulted from the honest mistakes
of a few of the defendants’ employees.
At this stage of proceedings, however, we do not find any abuse
of discretion and affirm the district court’s course of proceeding, sub-
ject to our ruling reversing the district court’s ruling to the extent that
it limits the scope of the government’s evidence in proving the con-
spiracy count. We remand with the guidance included herein.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
16 UNITED STATES v. JANATI

-- 16 of 16 --