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 >$3 million and Greenspan and associates received >$200,000 in cash, rent, fees, parties, and hires.
- The lab owners (David and Scott Nicoll) and Craig Nordman pled guilty to bribing doctors and testified as cooperating witnesses that payments were bribes/kickbacks for referrals.
- Payments included inflated rent for a phlebotomist, service fees, sham consulting fees routed through a shell company (Advantech), per-test cash envelopes, lab-paid Christmas parties, and jobs for Greenspan’s mistress and son.
- Greenspan admitted steering tests to the lab and receiving many benefits but claimed reliance on his (now deceased) lawyer’s advice and that tests were medically necessary.
- Indicted for kickbacks (42 U.S.C. §1320a-7), interstate commercial bribery (18 U.S.C. §1952), honest-services wire fraud (18 U.S.C. §§1343, 1346), and conspiracy; convicted on all counts and sentenced to 41 months after a four-level downward departure.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Greenspan) | Held |
|---|---|---|---|
| Advice-of-counsel burden & evidence limitations | Jury instruction and evidentiary limits were proper; prosecution proved intent | Court misstated burden (suggested Greenspan must "demonstrate" defense), wrongly excluded lawyer statements and limited defense to five agreements | Instruction wording erred but not prejudicial; excluding lawyer statements and narrowing scope were errors but harmless given overwhelming evidence; conviction affirmed |
| Medical-necessity evidence | Medical necessity is marginal and would confuse jury; core issue is steering labs, not added tests | Greenspan sought to admit expert testimony and cross-examine to show tests were necessary and rebut intent | District Court did not abuse Rule 403 discretion; probative value limited and risk of confusion substantial; any error harmless |
| Constructive amendment of indictment | Closing arguments did not so broaden charges as to require reversal | Government broadened Counts 3–4 (charged roughly on-party dates) to include consulting fees shortly before parties, effectively amending indictment | Court need not decide if amendment occurred; even if so, evidence of closely linked, overwhelming, uncontroverted acts (consulting fees and parties) bars reversal |
| Allocution at sentencing | The court’s asking counsel sufficed given defense strategy and substantial mitigation presented | Judge erred by not personally asking Greenspan to speak, which triggers presumption of prejudice | Error was plain and presumption applies, but reversal denied as Greenspan deliberately waived live allocution and used written/video statements as part of strategy; sentence affirmed |
Key Cases Cited
- United States v. Traitz, 871 F.2d 368 (3d Cir. 1989) (advice-of-counsel as a good-faith defense negating specific intent)
- United States v. Scully, 877 F.3d 464 (2d Cir. 2017) (defendant bears burden of production for advice-of-counsel; prosecution retains burden of persuasion)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error review framework for unpreserved errors)
- Rose v. Clark, 478 U.S. 570 (1986) (instructional errors that shift burden of proof are not necessarily structural if evidence of intent is conclusive)
- In re Winship, 397 U.S. 358 (1970) (government must prove guilt beyond a reasonable doubt)
- Green v. United States, 365 U.S. 301 (1961) (defendant’s right to personal allocution at sentencing)
- Mathews v. United States, 485 U.S. 58 (1988) (jury decides issues where evidence permits reasonable inferences)
- United States v. Adams, 252 F.3d 276 (3d Cir. 2001) (allocution error presumption of prejudice and discretion under Olano)