United States v. Howard Grant
2012 U.S. App. LEXIS 11663
| 5th Cir. | 2012Background
- Onward Medical Supply, run by Vinitski, fraudulently billed Medicare for unnecessary equipment from 2003–2009.
- Okonkwo provided forged prescriptions for Onward; Edem supplied the forged prescriptions
- Grant’s forged signature appeared on prescriptions; Moten notified Vinitski of falsities and Lee’s involvement.
- Nwankwo delivered or attempted to deliver equipment using forged prescriptions; some recipients could walk or did not need the devices.
- Moten testified Lee learned of the fraud and, despite that, sought to participate; Lee enrolled in a training class to assist deliveries.
- The government charged conspiracy to commit health care fraud under 18 U.S.C. § 1349; Grant faced additional aiding and abetting counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy | Grant, Nwankwo, Lee argued insufficient evidence | Grant, Nwankwo, Lee contend no agreement or intent | Sufficient evidence supported conspiracy for all defendants |
| Admission of Vinitski statements under Rule 801(d)(2)(E) | Vinitski’s statements were co-conspirator statements | Statements were not in furtherance or scope | Not plain error; admitted properly under co-conspirator exception |
| Prosecutorial cross-examination of Grant | Cross-examination supported billing violations and intent | Cross-examination improper or prejudicial | Not reversible prosecutorial misconduct; within legitimate cross-exam scope |
| Missing witness instruction | Vinitski was peculiarly within government’s control | Possible fifth amendment usage; missing witness instruction warranted | District court did not abuse discretion; no peculiarly controllable witness; instruction refused |
Key Cases Cited
- United States v. McElwee, 646 F.3d 328 (5th Cir. 2011) (sufficiency review; credibility and weight concerns not dispositive)
- United States v. Ford, 558 F.3d 371 (5th Cir. 2009) (standard for reviewing sufficiency of evidence)
- United States v. Loe, 262 F.3d 427 (5th Cir. 2001) (jury credibility and weighing evidence authority)
- United States v. Mackay, 33 F.3d 489 (5th Cir. 1994) (absence of knowledge in conspiratorial agreement)
- United States v. Williams-Hendricks, 805 F.2d 496 (5th Cir. 1994) (agreement may be inferred from concert of action)
- United States v. Garcia, 995 F.2d 556 (5th Cir. 1993) (payments for services can be in furtherance of conspiracy)
- United States v. Burton, 126 F.3d 666 (5th Cir. 1997) (co-conspirator statements admissible if in furtherance of conspiracy)
- United States v. Trejo, 610 F.3d 308 (5th Cir. 2010) (co-conspirator statements admissible in furtherance of conspiracy)
- United States v. Phillips, 219 F.3d 404 (5th Cir. 2000) (conspiracy concealment efforts can further conspiracy)
- United States v. Broussard, 80 F.3d 1025 (5th Cir. 1996) (conspiracy concealment as ongoing activity)
- Rios v. United States, 636 F.3d 168 (5th Cir. 2011) (missing witness instruction standards and Fifth Amendment context)