977 F.3d 1310
11th Cir.2020Background:
- Grow operated a multi-level marketing scheme that solicited Tricare beneficiaries to obtain compounded pain creams, scar creams, and a metabolic vitamin via telemedicine; prescriptions were forwarded to Patient Care pharmacy for Tricare reimbursement.
- He instructed representatives to select highest‑paying product codes, largest sizes, and multiple refills, and he pushed telemedicine providers to issue the costliest prescriptions; some recruits received products without meaningful physician contact.
- Grow paid commissions to representatives and encouraged or facilitated payments to recruits; he also sold a premium inactive ingredient (Ethoxy Gold) that inflated reimbursements.
- Tricare reimbursed Patient Care at very high rates (yielding large profits); Grow split profits with Patient Care and personally received large sums (millions overall).
- A jury convicted Grow of conspiracy to commit healthcare and wire fraud (multi‑object), multiple counts of healthcare fraud, conspiracy to pay/receive kickbacks, receipt/payment of kickbacks, and money laundering; the district court sentenced him to 262 months’ imprisonment.
- On appeal Grow challenged (1) sufficiency of the evidence, (2) an allegedly coercive jury instruction during deliberations, (3) the district court’s failure to instruct on wire fraud elements, and (4) that his sentence on the multi‑object conspiracy exceeded the statutory maximum consistent with the jury’s general verdict.
Issues:
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Grow) | Held |
|---|---|---|---|
| Sufficiency of the evidence for convictions (healthcare fraud, kickbacks, money laundering, conspiracy) | Circumstantial and direct evidence (prefilled forms, instructions to pick expensive codes, complaints to telemed doctors, Ethoxy Gold markup, payments to recruits, concealment, large profits, testimony) support convictions | Evidence insufficient: prescriptions were issued by doctors, no proof claims were false, and Grow lacked knowledge of fraud or illegality | Affirmed: evidence sufficient to prove medical necessity falsehoods, Grow’s knowledge and intent, and the kickback/money‑laundering offenses |
| Jury instruction during deliberations was coercive | Instruction merely informed jurors of scheduling and option for partial verdicts; no coercion | Friday scheduling remarks and invitation of partial verdicts pressured jurors and risked coerced verdict | Affirmed: instruction, read in context, was not coercive and had no coercive impact |
| Failure to instruct jury on elements of wire fraud (one object of multi‑object conspiracy) | No plain‑error relief because defendant invited the instruction error by submitting and accepting instruction that omitted wire‑fraud elements | Omission was plain error requiring reversal of conspiracy conviction or relief | Waived—Grow invited the error; appellate review of the instruction omission is barred |
| Sentence on Count 1 (dual‑object conspiracy) exceeded statutory maximum given general verdict | The government can elect to retry or consent to resentencing; district court may not impose sentence above the statutory maximum of the least serious object when jury returned a general guilty verdict | General verdict ambiguous as to whether jury found conspiracy to commit wire fraud (20 yrs) or healthcare fraud (10 yrs); 20‑year sentence exceeded permissible maximum if jury found only healthcare fraud object | Vacated sentence for Count 1 and remanded: government must, within 30 days of mandate, consent to resentencing under the lower statutory maximum or elect retrial with a special verdict |
Key Cases Cited
- United States v. Deason, 965 F.3d 1252 (11th Cir. 2020) (standard for reviewing sufficiency of the evidence)
- United States v. Gonzalez, 834 F.3d 1206 (11th Cir. 2016) (false claims include treatments that are not medically necessary)
- United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012) (doctor’s prescriptions do not preclude fraud if treatments are unnecessary)
- United States v. Mateos, 623 F.3d 1350 (11th Cir. 2010) (circumstantial evidence can show medical‑necessity fraud and a defendant’s knowledge)
- United States v. Melgen, 967 F.3d 1250 (11th Cir. 2020) (pre‑prepping diagnoses and profit motive probative of intent to defraud)
- United States v. Medina, 485 F.3d 1291 (11th Cir. 2007) (knowledge required in healthcare fraud and role of deliberate indifference)
- United States v. Machado, 886 F.3d 1070 (11th Cir. 2018) (financial gain is circumstantial evidence of intent to participate in fraud)
- United States v. Allen, 302 F.3d 1260 (11th Cir. 2002) (vacating sentence where a general verdict on a multi‑object conspiracy prevents determining which object the jury found; remand options for government)