United States v. Grow, No. 18-11809 (11th Cir. 2020)
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The Eleventh Circuit affirmed defendant's conviction for conspiring to commit healthcare and wire fraud, committing healthcare fraud, conspiring to receive and pay kickbacks, receiving kickbacks, and money laundering. The court held that there was sufficient evidence of fraud where recruits were prescribed, and Tricare was billed for, pain creams, scar creams, and vitamins that were not medically necessary; there was sufficient evidence of defendant's knowledge of the fraud and his intent to defraud; there was sufficient evidence that a witness's prescription was fraudulent; there was sufficient evidence for the jury to find that defendant intended to aid in the commission of the healthcare fraud; and the evidence was sufficient for a reasonable jury to conclude that defendant knew it was illegal to pay and receive illegal kickbacks and for laundering the proceeds of the kickback scheme. The court also held that the district court's scheduling instruction was not coercive. The court did not reach the merits of defendant's argument regarding jury instruction error on the elements of wire fraud because defendant invited the error.
However, the court vacated defendant's sentence for conspiring to commit healthcare fraud because it exceeded the statutory maximum allowed by the jury's general verdict. On remand, the district court must permit the government to either consent to resentencing based on a maximum sentence of ten years on count one or elect to retry defendant on count one with a special verdict.
The court issued a subsequent related opinion or order on February 2, 2023.
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