United States of America,
No. 10-1117
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: March 15, 2011; Filed: October 5, 2011 (Corrected 10/7/11)
Before LOKEN and COLLOTON, Circuit Judges, and NELSON, District Judge.
Appeal from the United States District Court for the Eastern District of Arkansas.
COLLOTON, Circuit
A jury found Geffrey A. Yielding guilty of two federal offenses: one count of aiding and abetting a violation of the so-called Medicare anti-kickback statute, in violation of
I.
In approximately 1998, Yielding began to work as a surgical and administrative assistant for Dr. Richard Jordan, a neurosurgeon in North Little Rock, Arkansas. Dr. Jordan performed surgeries at several area hospitals, including Baptist Health Medical Center in North Little Rock (“Baptist“). Yielding was responsible for ensuring that the required equipment was present at all of Dr. Jordan‘s surgeries.
Jordan “Jody” Wall was a charge nurse at Baptist in 2003 and 2004. He was responsible for ordering medical supplies for Dr. Jordan‘s surgeries at that hospital. Yielding told Wall which supplies were needed for each scheduled surgery, and Wall ensured that the rеquested items were available. When Baptist did not have enough supplies on hand, Wall asked Denise Rhodes, the hospital‘s senior inventory coordinator, to order the needed items.
In 2002, Yielding‘s wife, Kelley Yielding, incorporated Advanced Neurophysiology, Inc. (“ANI“), a medical services company of which she was the sole shareholder. By 2003, Kelley had begun to work as an independent sales agent for two medical supply companies known as Orthofix and Osteotech. Orthofix sold external bone growth stimulators, which promote bone growth following surgery in patients who would otherwise have difficulty growing new bone. Osteotech sold bone allograft, which is substitute bone that is used to fill a void in a patient‘s bone after surgery or trauma.
Kelley Yielding marketed the two companies’ products to surgeons, and received commissions on each sale. From February 2003 to October 2004, Kelley received approximately $384,000 in commissions from Osteotech and Orthofix that were attributable to purchases by Baptist. During the same period, ANI issued twenty-two checks to Wall totaling $54,366.08.
In November 2004, Baptist terminated Wall and Rhodes after an internal investigation revealed irregularities in the ordering of Osteotech bone and Orthofix bone growth stimulators. Baptist determined that Rhodes had placed purchasing orders for the Osteotech and Orthofix products without proper authorization, and that the hospital should not have purchased any Orthofix bone growth stimulators. Baptist also discovered that more than one hundred pieces of bone were missing from the hospital‘s inventory.
On December 27, 2004, Dr. Jordan forwarded to the Yieldings an e-mail he had received from a Baptist administrator. In the e-mail, the administrator characterized the purchases of the bone growth stimulators as “very suspicious,” and informed Dr. Jordan that the hospital was “continuing
Three days later, U.S. Bank issued a check to ANI for $34,018.90. This was the precise amount of ANI‘s total payments to Wall in 2004. The check listed the remitter as Jordan Wall, and the purpose of the payment as “REPAYMENT ON LOAN.” Bank records showed that on the same day, Yielding withdrew $21,018.90 from the Yieldings’ personal bank account at U.S. Bank. A receipt and currency transaction report indicated that Yielding also paid the bank $13,000 in cash.
The Federal Bureau of Investigation opened an inquiry into the irregularities at Baptist in mid-2005. In an interview in October 2005, Wall told investigators that the Yieldings had given him a loan of “[m]aybe $10,000,” not the $34,018.90 paid by check in December 2004. On April 14, 2006, the FBI executed search warrants at the Yieldings’ home and at Dr. Jordan‘s office. During the search of the Yielding residence, the agents discovered a promissory note describing an interest-free loan of $34,018.90 issued from ANI to Wall in January 2004. The note was marked as paid on December 30, 2004.
The agents also interviewed Kelley Yielding. She initially described the pаyments from ANI to Wall as a loan and denied that Wall had been employed by ANI. Yielding told the agents that he and his wife had given Wall a loan of approximately $30,000, that the loan had been documented, and that Wall had repaid the loan. After the agents confronted Yielding with bank records indicating that he used his own funds to purchase Wall‘s check to ANI, however, Yielding stated that Wall had convinced him to pay Wall approximately $3000 per month in exchange for Wall‘s promise to keep all of Kelley Yielding‘s supplies fully in stock. Yielding told the agents that Wall asked him to purchase a cashier‘s check to make it appear as if the payments to Wall had been a loan that Wall was paying back. On the same day, the FBI again interviewed Wall, who then admitted that he had received payments from the Yieldings in exchange for ordering Osteotech bone and Orthofix bone growth stimulators.
Kelley Yielding died on October 2, 2006. Wall entered a plea agreement with the government in 2008. On May 8, 2008, a grand jury indicted Yielding on forty-six counts of mail fraud, falsification of documents, and payment of kickbacks involving a federal health care program. A superseding indictment was filed on November 5, 2008, and a two-count second superseding indictment was returned on February 4, 2009.
At trial, the government presented testimony from FBI agents, Osteotech and Orthofix managers, and current and former Baptist employees. Wall testified that Yielding had approached him аnd had offered to pay him in exchange for ordering the products sold by Kelley Yielding. According to Wall, Yielding gave Wall lists of items to order, and Wall then asked Rhodes to obtain the listed supplies. Wall recalled that Yielding once told him to order some bone products so that Kelley would qualify for a free vacation. In return for Wall‘s efforts, Yielding gave him envelopes containing checks from ANI. Wall testified that Yielding told him to “keep it quiet,” and asked him in approximately December 2004 to sign and date a promissory note so that the note would appear to have been signed in January 2004. Wall said that Yielding also asked him to sign a cashier‘s check that would make the payments from ANI to Wall look like a loan.
The government also presented testimony concerning Yielding‘s past employment. Cary Hagan, the owner of a medical device distributorship named Medex, Inc., explained
The jury convicted Yielding on both charges. At sentencing, the district court calculated an advisory guideline range of 78 to 97 months’ imprisonment. The court sentenced Yielding to 60 months’ imprisonment on the first count of the indictment, and 78 months’ imprisonment on the second count, to run concurrently, and to a three-year term of supervised release. The district court also ordered Yielding to pay $944,995.84 in restitution.
II.
Yielding first argues that the district court erred in admitting testimony concerning statements made by Kelley Yielding during her interview with the FBI on April 14, 2006. Over Yielding‘s objection, the district court permitted the following testimony from one of the FBI agents who interviewed Kelley:
Q: Did you ask Kelley Yielding about the monies that she, through ANI, had paid to Jody Wall?
A: We did.
Q: What did Ms. Yielding tell you about those payments?
A: She acknowledged the payments and she expressed to us that they were a loan provided to Mr. Wall. . . .
Q: Okay. Did you ask her who made that loan?
A: I don‘t know if we asked her specifically, but it was – during the interview it was discussed as a “We gave him a loan,” leading us to believe it was her and her husband, Mr. Geffrey Yielding.
Q: Did you ask her whether Jody Wall had ever been employed by ANI?
A: We did.
Q: What was her response?
A: She said no and not in any capacity.
Yielding asserts that this testimony was inadmissible hearsay and that it violated his rights under the Confrontation Clause of the Sixth Amendment. Yielding challenges two aspects of the testimony: the report of Kelley Yielding‘s statement that the payments to Wall were a loan, and the report of her statement that Wall was never employed by ANI. We review a district court‘s evidentiary rulings for abuse of discretion, but Confrontation Clause objections are considered de novo. United States v. Watson, No. 11-1169, 2011 WL 3568918, at *2 (8th Cir. Aug. 16, 2011).
The admission of the agent‘s testimony about a supposed “loan” to Wall was not error, because the statement was not hearsay and not testimonial. Hearsay “is a statement, other than one made by the declarant while testifying at the trial
Kelley Yielding‘s report that ANI never employed Wall, by contrast, was not offered for the purpose of establishing its falsity. The government agreed that Wall was not an ANI employee, and relied on this fact in closing argument. The government argues that the agent‘s testimony was admissible, because it was not introduced to prove the truth of the matter asserted, and because it was a declaration by a coconspirator. See
We need not resolve those points, because we conclude that any error in the admission of the statement about Wall‘s employment status was harmless. An erroneous evidentiary ruling is harmless if it does not have a substantial influence on the outcome. United States v. Lupino, 301 F.3d 642, 645 (8th Cir. 2002). Violations of the Confrontation Clause do not require reversal if the error is harmless beyond a reasonable doubt. United States v. Holmes, 620 F.3d 836, 844 (8th Cir. 2010).
Yielding contends that the introduction of the statement prejudiced him by undermining his reliance on a statutory “safe harbor” under the anti-kickback statute. The anti-kickback statute‘s criminal prohibition provides, in relevant part, that:
[W]hoever knowingly and willfully offers or pays any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person . . . (B) to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program, shall be guilty of a felony . . . .
III.
Yielding also challenges the admission of evidence, under
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
The district court admitted testimony concerning Yielding‘s theft from Dr. Jordan in 1998 as relevant to Yielding‘s intent in this case, and allowed testimony about Yielding‘s theft from Cary Hagan in 1995 as relevant to knowledge and intent. The court determined that the probative value of the evidence outweighed its prejudicial effect, see
Evidence of other extrinsic acts is admissible under Rule 404(b) when it is: “(1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) supported by sufficient evidence; and (4) such that its probative value is not outweighed by any prejudicial impact.” United States v. Ruiz-Estrada, 312 F.3d 398, 403 (8th Cir. 2002). “The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character.” Huddleston v. United States, 485 U.S. 681, 686 (1988).
The testimony about Yielding‘s prior thefts showed that he used specialized financial knowledge to steal from employers in the health care industry and to cover up his actions by disguising them as legitimate activity. Yielding placed his state of mind at issue: he argued there was no evidence that he knew the promissory note signed by Wall was false, or that he intended his payments to Wall as an inducement to order products distributed by Kelley Yielding. The disputed evidence of prior acts was relevant to show that Yielding knew of the kickbacks and of the falsity of the promissory note, and to show that Yielding intended both to induce Wall to order Kelley‘s products and to use the promissory note to cover up the kickback scheme.
We also reject Yielding‘s contention that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. The evidence of Yielding‘s prior acts had substantial probative value on the issues of knowledge and intent. The district court minimized any prejudice to the defendant by giving the jurors a limiting instruction that directed them not to consider the evidence as proof of Yielding‘s character or criminal propensity, but only as proof of Yielding‘s knowledge, intent, and relationship with Dr. Jordan. See id. We therefore conclude that the admission of the Rule 404(b) evidence was not an abuse of discretion.
IV.
Yielding next argues that the district court erred in denying his motion to dismiss count one of the second superseding indictment, which charged a violation of the anti-kickback statute. Yielding contends that the charge was both duplicitous and barred by the statute of limitations. We review the denial of a motion to dismiss an indictment de novo. United States v. Nichols, 574 F.3d 633, 636 (8th Cir. 2009).
A.
An indictment is duplicitous when it combines two or more distinct and separate offenses into a single count. United States v. Nattier, 127 F.3d 655, 657 (8th Cir. 1997). The “principal vice” of a duplicitous indictment “is that the jury may convict a defendant without unanimous аgreement on the defendant‘s guilt with respect to a particular offense.” Id. at 657 (internal quotation omitted). This risk can be cured, however, “by a limiting instruction requiring the jury to unanimously find the defendant guilty of at least one distinct act.” Id.
The first count of the indictment alleged:
From in or about June 2003 through in or about December 2004, in the Eastern District of Arkansas and elsewhere, [Yielding] and others known to the Grand Jury, aiding and abetting one another, knowingly and willfully paid Jody Wall the following remuneration, namely checks from [ANI], portions of which were for the purpose of inducing Wall to arrange for the order and purchase of bone from Osteotech and bone growth stimulators from Orthofix, items for which payment may be made in whole or in part under a Federal health care program.
This sentence is followed by a list of eighteen checks paid to Wall on separate dates between June 2003 and December 2004, and the allegation that Yielding‘s conduct was in violation of the anti-kickback statute and
It is not necessary that the government prove beyond a reasonable doubt that more than one pаyment as alleged in Count 1 was made. It is sufficient if the government proves beyond a reasonable doubt one such payment; but in that event, in order to return a verdict of guilty, you must unanimously agree upon which payment was made. If you cannot agree in that manner, you must find the defendant not guilty of the offense charged in Count 1.
This instruction closely tracks limiting instructions that we have approved for an identical purpose, see Nattier, 127 F.3d at 658; United States v. Karam, 37 F.3d 1280, 1286 (8th Cir. 1994), and it was sufficient to resolve any potential duplicity concerns by requiring the jury to agree unanimously on a particular payment.
Yielding contends in the alternative that this instruction “abrogated” all elements of the offense except the requirement that the government prove a “payment,” a misstep that he deems “so patently erroneous that it needs no citation of authority.” The clarity of the alleged error is lost on us. The limiting instruction merely described how the jury should approach one element of the offense; it did not relieve the jurors of their obligation to find that the government had proven each element of the offense beyond a reasonable doubt.
Yielding also claims a violation of his right to indictment by a grand jury under the
B.
The “general ‘catchall’ federal criminal statute of limitations,”
For limitations purposes, “a superseding indictment filed while the original indictment is validly pending relates back to the time of filing of the original indictment if it does not substantially broaden or amend the original charges.” United States v. Hance, 501 F.3d 900, 905 (8th Cir. 2007) (internal quotation omitted). An original indictment remains pending prior to trial, even after the filing of a superseding indictment, unless the original indictment is formally dismissed. United States v. Walker, 363 F.3d 711, 715 (8th Cir. 2004); see
To determine whether a superseding indictment substantially broadens or amends a pending timely indictment, we agree with other courts that it is appropriate to consider “whether the additional pleadings allege violations of a different statute, contain different elements, rely on different evidence, or expose the defendant to a potentially greater sentence.” United States v. Salmonese, 352 F.3d 608, 622 (2d Cir. 2003). The “touchstone” of this analysis is whether the original indictment provided the defendant with fair notice of the subsequent charges against him. United States v. McMillan, 600 F.3d 434, 444 (5th Cir. 2010); United States v. Munoz-Franco, 487 F.3d 25, 53 (1st Cir. 2007); Salmonese, 352 F.3d at 622; United States v. Smith, 197 F.3d 225, 229 (6th Cir. 1999). “Superseding indictments have been deemed timely when they simply added detail to the original charges, narrowed rather than broadened the charges, contained amendments as to form but not substance, or were otherwise trivial or innocuous.” United States v. Ben Zvi, 168 F.3d 49, 54 (2d Cir. 1999).
The original indictment in this case alleged that Yielding violated the anti-kickback statute by aiding and abetting the payment of eighteen checks to Wall to induce Wall to order “allograft bone from Osteotech.” The original indictment also charged Yielding with several counts of mail fraud based on payments made to Wall in exchange for Wall‘s agreement to order Orthofix bone growth stimulators. Count one of the second superseding indictment alleged that Yielding had violated the anti-kickback statute by aiding and abetting the same eighteen payments listed in the original indictment, but addеd that the payments were to induce Wall to order Orthofix bone growth stimulators as well as “bone from Osteotech.” The second superseding indictment did not contain any mail fraud charges. Yielding argues that count one of the second superseding indictment substantially broadened the original charges by adding a reference to Orthofix bone growth stimulators in the anti-kickback count and by removing the term “allograft.”
We conclude that count one of the second superseding indictment did not substantially broaden or amend the charges in the original indictment. Both indictments contained identical allegations that Yielding aided and abetted eighteen specific payments to induce Wall to order products distributed by Kelley Yielding. The original charges fairly alerted Yielding that he would be called to account for certain activities – namely, the eighteen payments to Wall – and that he should prepare a defense. See McMillan, 600 F.3d at 444-45; United States v. Grady, 544 F.2d 598, 601-03 (2d Cir. 1976). The mail fraud charges in the original indictment also provided Yielding with explicit notice that the Orthofix purchases would be at issue. The second superseding indictment actually narrowed the charges against Yielding by dropping the mail fraud counts and combining the Osteotech and Orthofix product purchases into a single anti-kickback count. We see no reason to conclude that the removal of the word “allograft” was anything more than a trivial alteration of the indictment. We therefore hold that сount one of the second superseding indictment related back to the original indictment and was timely under
V.
Yielding argues that the district court erred by refusing to hold an evidentiary
A.
Prior to trial, Yielding filed a motion to suppress statements he made during his interview with the FBI on April 14, 2006. Yielding asserted that his statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and requested an evidentiary hearing. The motion to suppress asserted that federal agents contacted and interrogated Yielding in April 2006, that Yielding was a target of the agents’ investigation, and that the agents who conducted the interrogation failed to advise Yielding of the warnings required by Miranda. The district court denied the motion to suppress without a hearing, reasoning that “Yielding has not provided any facts in support of his argument that his statement should be suppressed.” Yielding argues that the refusal to hold an evidentiary hearing violated his rights under the Due Process Clause of the
A district court presented with a motion to suppress need not hold an evidentiary hearing as a matter of course, and a hearing is unnecessary if the district court can determine that suppression is unwarranted as a matter of law. United States v. Mims, 812 F.2d 1068, 1073-74 (8th Cir. 1987). Miranda‘s requirements apply only to interrogations of suspects who are in custody. 384 U.S. at 44. A suspect is “in custody” for purposes of Miranda when there is a “formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” See California v. Beheler, 463 U.S. 1121, 1125 (1983) (internal quotation omitted). In his motion, Yielding did not assert that he was in custody at the time of the interrogation, and he did not allege any facts that would support a determination that he was in custody. Denial of the motion to suppress was therefore appropriate as a matter of law, and no evidentiary hearing was required.2
B.
On November 16, 2006, Yielding entered into a proffer agreement with the government. The agreement provided that the content of Yielding‘s proffer could not be used against him in a criminal proceeding, except as impeachment or rebuttal evidence, or as the basis of a prosecution for “perjury, false statements, or obstruction.” The agreement also stated that “[t]he government may make derivative use of, and may pursue investigative leads suggested by, any statements or information provided by you [sic] proffer.” Yielding‘s proffer concerned the Yieldings’ business dealings with Dr. Patrick Chan, an Arkansas neurosurgeon who was under investigation in a separate case.
Prior to trial, Yielding moved for an order declaring the proffer agreement unenforceable or, in the alternative, striking portions of the agreement that authorized the government to use the proffered statements
We need not decide whether a hearing was necessary, because any error was harmless. See
VI.
Jack Lassiter and Erin Cassinelli Couch represented Kelley Yielding in 2006 in connection with the federal investigation into the payments from ANI to Wall. This representation apparently lasted until Kelley‘s death in October 2006. On March 18, 2009, Yielding served Lassiter with a subpoena requiring his presence at trial and requiring him to produce his entire file regarding the representation of Kelley Yielding. See
Lassiter and Couch moved to quash the subpoena pursuant to
Yielding argues that, as the personal representative of Kelley Yielding‘s estate, he holds Kelley‘s attorney-client privilege and can waive that privilege at will. He also contends that due process considerations require a waiver of Kelley‘s attorney-client privilege. It is not clear whether Lassiter and Couch withheld any documents based on the attorney-client privilege that were not also covered by the work-product doctrine, and Yielding does not challenge the district court‘s ruling on work product. But even assuming there is not completе overlap, for the reasons that follow, we see no abuse of discretion in the district court‘s decision to quash the subpoena.
In the absence of a relevant federal rule, statute, or constitutional provision, federal common law governs questions of privilege in federal criminal proceedings.
In Swidler & Berlin v. United States, 524 U.S. 399, 410 (1998), the Supreme Court recognized that the attorney-client privilege generally survives the death of a client. Proposed
A personal represеntative of a deceased client generally may waive the client‘s attorney-client privilege, however, only when the waiver is in the interest of the client‘s estate and would not damage the client‘s reputation. See 8 Wigmore, Evidence § 2329 (McNaughton rev. 1961); 81 Am. Jur. 2d Witnesses § 335; E.S. Stephens, Annotation, Waiver of Attorney-Client Privilege by Personal Representative or Heir of Deceased Client or by Guardian of Incompetent, 67 A.L.R.2d 1268, § 1 (2009). The cases that have considered this question in detail recognize that a posthumous waiver must be in the interest of the deceased client‘s estate. See, e.g., Dist. Attorney for the Norfolk Dist. v. Magraw, 628 N.E.2d 24, 26-27 (Mass. 1994); Eicholtz v. Grunewald, 21 N.W.2d 914, 916-17 (Mich. 1946); Mayorga v. Tate, 752 N.Y.S.2d 353, 356 (N.Y. App. Div. 2002) (per curiam) (collecting cases). This rule furthers the purposes of the attorney-client privilege by reducing uncertainty about the privilege‘s posthumous application and encouraging “full and frank” discussions between clients and their attorneys. See Swidler & Berlin, 524 U.S. at 409-10.
Yielding acknowledges that he sought to waive Kelley Yielding‘s attorney-client privilege in order to use the privileged communications against Kelley‘s interest. He wanted to impeach any of her statements introduced by the government, see
unconvinced. An admission by Kelley Yielding of complicity in a kickback scheme – if she made such an admission to her attorneys – could do far more damage to Kelley’s reputation than a mere investigation.
Yielding also contends that due process considerations require a waiver of Kelley’s privilege. Yielding did not raise this argument before the district court, so we review only for plain error. See
VII.
Yielding objects to certain aspects of the district court’s jury instructions regarding count one, the anti-kickback charge. We review a district court’s formulation of jury instructions for an abuse of discretion, and we will reversе only if an error in the instructions was prejudicial. United States v. White Calf, 634 F.3d 453, 456 (8th Cir. 2011).
A.
Yielding argues that the jury instructions improperly defined the word “willfully,” as that term is used in the anti-kickback statute. The statute requires the government to prove that the defendant “knowingly and willfully” offered or paid remuneration to a person to induce that person to purchase goods or items for which payment may be made under a federal health care program.
Yielding complains that because the district court defined “willfully” in the disjunctive – requiring that the defendant knew his conduct was wrongful or unlawful – “there is no way to tell whether the jurors were unanimous in their selection.” Yielding did not object to the instruction on this basis, and we conclude that there was no plain error. See
B.
Yielding also argues that the district court’s instructions regarding the anti-kickback statute constructively amended the indictment. Count one of the second superseding indictment alleged that Yielding aided and abetted payments to Wall “for the purpose of inducing Wall to
A jury instruction constructively amends the indictment if it alters the essential elements of the offense charged in the indictment and thereby creates a “substantial likelihood” that the defendant was convicted of an uncharged offense. United States v. Buchanan, 574 F.3d 554, 564 (8th Cir. 2009). The addition of the term “primarily” in the jury instructions did not create such a likelihood. The indictment alleged that portions of each payment were made to induce Wall to order Kelley’s products, and the instruction simply informed the jurors that they need not find that such an inducement was the sole purpose of the payments. We therefore reject Yielding’s constructive amendment claim.3
C.
Yielding’s next objection concerns the district court’s refusal to issue a proposed theory-of-defense instruction. This court often has said that “[a] defendant has a right to have an instruction read reflecting his or her theory of the case, provided that the request is made in time and that the instruction is supported by the evidence and correctly states the law.” United States v. Hoffmann, 556 F.3d 871, 874 (8th Cir. 2009) (internal quotation omitted). But a defendant is not entitled to such an instruction “where the instructions given adequately and correctly cover the substance of the requested instruction.” Id. at 874-75 (internal quotation omitted).
Yielding asserts that his theories of defense on count one were that: (1) the purpose of the payments was not to influence Wall to order the products at issue; (2) Yielding’s hopes, expectations, or beliefs were insufficient to sustain a conviction under the anti-kickback statute; (3) Wall was paid as an agent or employee of ANI; and (4) Yielding could be convicted only if he knew that his conduct violated a known legal duty. The first three theories were adequately reflected in the district court’s instructions concerning the purpose requirement of the anti-kickback statute. The fourth theory was an inaccurate description of the law as established in Jain, 93 F.3d at 441, and Yielding therefore had no right to such an instruction.
D.
Yielding’s final challenge to the jury instructions on count one concerns the district court’s refusal to give the jury an instruction regarding Jody Wall’s mental capacity. Yielding asked the court to instruct the jury that if it believed Wall’s memory was faulty due to a mental defect, it should “give his testimony such weight[,] if any, [as] you think it deserves in light of these facts.” The district court declined to give this instruction, and instead gave the jurors a detailed instruction regarding their duty to weigh testimony and decide
VIII.
Yielding raises several challenges to his conviction on count two for violating
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
A.
Yielding’s narrowest challenge is to the district court’s jury instructions on the
The crime of falsifying a document as charged in Count Two of the indictment, has three essential elements, which are:
One, the defendant knowingly falsified a document;
Two, the defendant did so with the intent to impede, obstruct, or influence the investigation or proper administration of any matter or in contemplation of or relation to any such matter; and
Three, the matter was within the jurisdiction of the United States Department of Health and Human Services which is an agency of the United States.
If all of these essential elements have been proved beyond a reasonable doubt as to the defendant then you must find the defendant guilty of the crime charged under Count Two; otherwise you must find the defendant not guilty of this crime under Count Two.
The United States does not have to prove that the matter be pending at the time of the obstruction, but only that the acts be taken in relation to or contemplation of any such matter or case.
Further, the United States does not have to prove that the falsifying of the document would naturally or probably result in obstruction.
In order to meet its burden, the United States need not prove that the defendant specifically knew that the matter was within the jurisdiction of a department or agency.
R. Doc. 93, at 11.
Yielding renews objections lodged in the district court regarding the elements of the offense. To resolve the challenges to the instructions, therefore, we must consider whаt proof is required to establish a violation of
One element on which both parties agree is that the government must prove that Yielding “knowingly . . . falsifie[d] . .
The element of intent is more complex. The statute provides that liability may arise in three different situations involving matters within the jurisdiction of a federal department or agency: (1) when a defendant acts directly with respect to “the investigation or proper administration of any matter,” that is, a pending matter, (2) when a defendant acts “in . . . contemplation of any such matter,” and (3) when a defendant acts “in relation to . . . any such matter.” Although the phrasing of the statute is a bit awkward, the government concedes that the prosecution must show intent to impede, obstruct, or influence the investigation or proper administration of a matter in each of these three scenarios. Appellee’s Br. 44, 47. We think this is the better reading of the statute. The phrase “or in relation to or contemplation of any such matter” is set off by commas and follows the reference to an accused’s intent to obstruct the investigation of “any matter.” It seems to us that Congress thereby sought to extend the prohibition to situations in which the accused does not act directly with respect to a pending matter, but acts either in contemplation of a future matter or in relation to a pending matter. The statute, for example, does not allow a defendant to escape liability for shredding documents with intent to obstruct a foreseeable investigation of a matter within the jurisdiction of a federal agency just because the investigation has not yet commenced.
But we do not think Congress, in expanding the scope of
The parties disagree, however, about whether the intent element of
The proposed “nexus” requirement is derived from United States v. Aguilar, 515 U.S. 593 (1995), and Arthur Andersen LLP v. United States, 544 U.S. 696 (2005). In Aguilar, the Court considered
In Arthur Andersen, the Court addressed
Aguilar and Arthur Andersen relied on the Court’s traditional exercise of restraint in assessing the reach of federal criminal statutes, “both out of deference to the prerogatives of Congress, and out of concern that ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.’” Aguilar, 515 U.S. at 600 (citations omitted) (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)). Presented with a dissent in Aguilar that deemed an accused’s intent to obstruct sufficient to impose liability, without need for a “natural and probable effect” on an official proceeding, id. at 612-13 (Scalia, J., dissenting), the Court responded that an accused’s culpability in that situation “is a good deal less clear from the statute than we usually require in order to impose criminal liability.” Id. at 602.
We conclude that the “nexus” requirement urged by Yielding – that the government must show the accused knew his actions were likely to affect a federal matter – does not apply to a prosecution for the knowing falsification of documents under
The language of
But in
Yielding also maintains that the knowledge requirement of
Yielding also asserts that the jury instructions were deficient because they did not define the phrase “in contemplation of.” A district court, however, need not define terms that have a common usage and understanding. United States v. Rice, 449 F.3d 887, 895 (8th Cir. 2006); United States v. Whitehead, 176 F.3d 1030, 1040 (8th Cir. 1999). “Contemplation” is commonly understood as “an act of the mind in considering with attention,” as well as “the act of looking forward to an event” and “the act of intending or considering a future event.” Webster’s Third New International Dictionary 491 (2002). The jury instruction also clarified the meaning of the term through juxtaposition: the jury was advised that the government need not prove that the matter was “pending at the time of obstruction,” but only that the accused’s acts were “taken in . . . contemplation of any such matter.” R. Doc. 93, at 11. A reasonable jury thus would understand the phrase “in contemplation of” to refer to a matter that was not yet pending but which the defendant envisioned or anticipated. No further definition was required.5
Yielding also moved unsuccessfully to dismiss the indictment on the ground that
We conclude that
C.
Yielding also challenges the sufficiency of the evidence supporting his conviction under
Yielding contends that the evidence was insufficient because no reasonable jury could conclude that he contemplated an investigation by a federal agency. The government presented two theories supporting a
In any event, sufficient evidence supports a finding that Yielding acted in contemplation of a matter, with the intent to impede, obstruct, or influence an investigation of such matter, and that the matter was within the jurisdiction of a federal department. The evidence included an e-mail
Based on this evidence, a reasonable jury could conclude that the e-mail notified Yielding about Baptist’s internal investigation, that Yielding feared that the inquiry at the hospital would uncover the illicit payments and lead to an investigation by law enforcement or regulators, and that Yielding therefore designed a scheme to cover up the kickbacks and thwart such an investigation. The jury also reasonably could infer that Yielding originally sought to avoid billing Medicare for the supplies so that his activities would escape the scrutiny of federal investigators. The investigation that arose concerned a matter within the jurisdiction of the United States Department of Health and Human Services. The evidence was sufficient to support Yielding’s conviction under
IX.
Yielding raises several challenges to his sentence. In reviewing a defendant’s sentence, our first task is to ensure that the district court committed no significant procedural error, such as improperly calculating the guidelinе range. Gall v. United States, 552 U.S. 38, 51 (2007). We review a district court’s interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error. United States v. Gallimore, 491 F.3d 871, 874-75 (8th Cir. 2007).
A.
Yielding first contends that the district court incorrectly applied the advisory guidelines concerning amount of loss. The district court determined that the applicable guideline was
If the greater of the value of the bribe or the improper benefit to be conferred (A) exceeded $2,000 but did not exceed $5,000, increase by 1 level; or (B) exceeded $5,000, increase by the number of levels from the table in
§ 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.
Yielding contends that the district court erred by using the amount of loss to the victims, rather than the amount of the improper benefit conferred on Yielding, and we agree. Section 2B4.1(b)(1) directs the court to use “the greater of the value of the bribe or the improper benefit to be conferred,” not the amount of loss to victims, when increasing the offense level
B.
Yielding argues that the district court’s imposition of a two-level adjustment for obstruction of justice, pursuant to
When an obstruction of justice offense is grouped with an underlying offense, the offense level for the grouped offense is the offense level for the underlying offense increased by the two-level obstruction adjustment under
The district court increased Yielding’s offense level by two levels, pursuant to
Even assuming that “control” is required, cf. United States v. Gaines, 639 F.3d 423, 428-29 & n.4 (8th Cir. 2011), there was ample evidence that Yielding qualified for an enhancement under
D.
Yielding’s last argument is that the district court erred in ordering him to pay restitution. Federal courts may order restitution only when explicitly empowered to do so by statute. United States v. Balentine, 569 F.3d 801, 802 (8th Cir. 2009). The district court did not identify the basis for its award of restitution. The presentence report stated that an order of restitution was required by the Mandatory Victims Restitution Act (“MVRA”),
The MVRA provides that a sentencing court “shall order” a defendant convicted of an offense identified in
The government’s theory is unconvincing, because Yielding’s conviction
The government contends that we should affirm the order of restitution on an alternative ground, because such an order was authorized by
* * *
For the foregoing reasons, we affirm Yielding’s convictions, vacate the sentence, and remand for further proceedings consistent with this opinion.