7 F.4th 1299
11th Cir.2021Background
- Lillian Akwuba, a nurse practitioner, was tried for (and convicted of) distributing controlled substances, conspiracy to distribute, health-care fraud, and conspiracy to commit health-care fraud based on her work at Dr. Gilberto Sanchez’s "pill mill" (Family Practice) and later at her own clinic (Mercy Family).
- Alabama requires NPs to have a collaborative agreement with a physician and a QACSC to prescribe controlled substances; Akwuba worked under several collaborative physicians, including Dr. Sanchez (who pled guilty and testified for the government).
- The government’s case relied on PDMP records, encounter notes, and testimony from three medical experts (Drs. Kaufman, O’Dell, Kennedy) who reviewed the available records and opined that many prescriptions lacked legitimate medical justification.
- Akwuba’s principal defense was that the government exhibits were incomplete: she testified she kept handwritten triage (T-) sheets that were not produced and could have altered expert conclusions.
- After an 11-day trial the jury convicted Akwuba on most counts; she was sentenced to 120 months concurrent on each count, and she appealed arguing insufficiency of evidence, an erroneous jury instruction about production of records, and multiple evidentiary errors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence (distribution, conspiracy, most health-care fraud counts) | Government: evidence (expert reviews, PDMP, Sanchez testimony, staff testimony) sufficed to show prescriptions outside usual practice and fraudulent billing | Akwuba: government failed to show patients didn’t need drugs; conspiracy lacked an agreement | Affirmed convictions for distribution (Counts 2–7,9–11,44–48,50–53), conspiracy (Counts 1,13), and health-care fraud (Counts 15,17,22); reversed Count 24 (insufficient because wrong insurer billed) |
| Jury instruction re: "all" Family Practice records provided to defense | Government: clarifying instruction about exhibits and production was accurate in context and harmless; defense still able to present missing-records theory | Akwuba: judge misstated a disputed fact, effectively directing verdict/limiting defense and violating due process | Instruction was erroneous (judge added an unstipulated sentence) but did not deprive Akwuba of her right to present a defense or rise to reversible constitutional error; affirmed |
| Exclusion of testimony about stolen prescription pad | Government: testimony was irrelevant/hearsay and should be proved through proper witnesses or records | Akwuba: stolen pad could explain anomalous high narcotic prescribing and rebut culpability | Court did not err; defense withdrew the line after counsel reviewed records and found no linked prescriptions; exclusion proper and affirmed |
| Expert testimony and limits on cross‑examination (Dr. Kaufman and others; Rule 704(b)) | Government: experts testified about records and standards; they did not state defendant’s mens rea and their testimony was admissible to show prescriptions were not for legitimate medical purposes | Akwuba: experts improperly opined on her intent and on their own practices; cross‑exam should have allowed impeachment with changed-opinion email | Admission of expert testimony and limiting cross‑examination were not plain error; experts did not expressly state defendant’s intent (Rule 704(b) preserved); any irrelevant remarks about clinicians’ practices did not cause substantial prejudice; affirmed |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
- United States v. Ruan, 966 F.3d 1101 (11th Cir. 2020) (medical benefit to patient is not an element; manner of prescribing can be unlawful)
- United States v. Joseph, 709 F.3d 1082 (11th Cir. 2013) (upholding convictions where experts testified prescriptions lacked legitimate medical reasons)
- United States v. Goetz, 746 F.2d 705 (11th Cir. 1984) (trial judge may not direct verdict on an element of a crime)
- Sullivan v. Louisiana, 508 U.S. 275 (1993) (prosecution must prove all elements beyond a reasonable doubt)
- United States v. Alvarez, 837 F.2d 1024 (11th Cir. 1988) (expert may not expressly state opinion on defendant’s mental state under Rule 704(b))
- United States v. Caniff, 955 F.3d 1183 (11th Cir. 2020) (experts may give opinions that support inferences about state of mind without stating the ultimate issue)
- United States v. Abovyan, 988 F.3d 1288 (11th Cir. 2021) (standard for reversing based on erroneous jury instruction)
- United States v. Hurn, 368 F.3d 1359 (11th Cir. 2004) (assessing whether right to present a defense was actually violated and whether error was harmless beyond a reasonable doubt)
- United States v. Azmat, 805 F.3d 1018 (11th Cir. 2015) (cumulative-error doctrine)