United States v. Bernard Greenspan
923 F.3d 138
3rd Cir.2019Background
- Dr. Bernard Greenspan, a solo family physician, referred over 100,000 blood tests to Biodiagnostic Laboratory Services over seven years; the Lab earned over $3 million and Greenspan and associates received >$200,000 in cash, fees, benefits, employment, and parties.
- Payments included misstated rent for an on-site phlebotomist, duplicative service fees, inflated consulting fees paid through a shell (Advantech), per-test cash envelopes, Lab-paid Christmas parties, and hires of Greenspan’s son and mistress.
- Greenspan admitted steering business to the Lab and receiving many benefits but denied corrupt intent and claimed reliance on counsel (Barry Cohen) and medical necessity for tests.
- A jury convicted Greenspan of honest-services wire fraud, federal kickback statutes, use of interstate facilities to commit commercial bribery, and conspiracy. He appealed raising four principal claims.
- Trial court limited some advice-of-counsel testimony, excluded most medical-necessity evidence, and the prosecution’s closing arguably broadened indictment claims; at sentencing the court asked only counsel (not Greenspan) about allocution.
- The Third Circuit affirmed: it found instructional/hearsay/scope errors harmless given overwhelming evidence, upheld exclusion of additional medical-necessity proof under Rule 403, declined to reverse any alleged constructive amendment, and refused to vacate sentence because Greenspan strategically avoided allocution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Advice-of-counsel instruction and testimony limits | District Court shifted burden to Greenspan and improperly excluded/limited his testimony about counsel’s advice and limited scope to five agreements | Greenspan argued he produced enough evidence of seeking and relying on counsel for all agreements; exclusion/limitation prejudiced his good-faith defense | Instruction phrasing improperly suggested burden shift but error was not prejudicial; exclusion of lawyer’s statements and limiting scope were legal errors but harmless given overwhelming evidence of corrupt intent |
| Admission of medical-necessity evidence | Greenspan sought expert testimony and cross to show tests were medically necessary to negate criminal intent | Prosecution argued medical-necessity evidence was only marginally relevant and risked confusing jury | District Court did not abuse discretion under Rule 403; exclusion proper (any error also harmless) |
| Constructive amendment of the indictment in closing | Prosecutor broadened Counts Three and Four (tied to Christmas parties) to include consulting fees nearby in time, effectively changing the charged acts | Greenspan contended he lacked notice and was tried on unindicted conduct | Court need not decide whether amendment occurred; even if it did, reversal unwarranted because the uncharged and charged acts were closely linked and evidence was overwhelming and uncontroverted |
| Failure to personally address defendant at sentencing (allocution) | Greenspan argued the judge erred by not asking him directly whether he wished to speak | Government noted Greenspan waived allocution through counsel and had submitted written/video statements; allocution error was part of defense strategy | Court acknowledged plain error but declined reversal under Olano prong four because Greenspan deliberately bypassed in‑court allocution and received a substantial downward departure; reversal would reward sandbagging |
Key Cases Cited
- United States v. Traitz, 871 F.2d 368 (3d Cir.) (advice-of-counsel as good-faith defense framework)
- United States v. Scully, 877 F.3d 464 (2d Cir. 2017) (burden-of-production vs. persuasion in advice-of-counsel defense)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error review four-prong test)
- Rose v. Clark, 478 U.S. 570 (1986) (instructional errors on intent and harmlessness standard)
- Mathews v. United States, 485 U.S. 58 (1988) (jury’s role in resolving sufficiency for defenses)
- Stirone v. United States, 361 U.S. 212 (1960) (constructive amendment and Grand Jury Clause)
- United States v. Adams, 252 F.3d 276 (3d Cir. 2001) (allocution rights and plain-error presumption)
- United States v. Shaw, 891 F.3d 441 (3d Cir.) (review principles for jury instructions)