United States v. Monty Ray Grow

977 F.3d 1310

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 21, 2020
• Docket: 18-11809
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11809 ________________________

D.C. Docket No. 1:16-cr-20893-FAM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MONTY RAY GROW,

Defendant-Appellant,

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(October 21, 2020)

Before LUCK, ED CARNES, and MARCUS, Circuit Judges.

PER CURIAM: USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 2 of 44

A jury convicted Monty Grow of conspiring to commit healthcare and wire

fraud, committing healthcare fraud, conspiring to receive and pay kickbacks,

receiving kickbacks, and money laundering. The district court sentenced him to 262

months’ imprisonment. Grow argues on appeal that his convictions must be reversed

because the evidence was insufficient on all counts, the district court’s instruction to

the jury on the third day of deliberations was coercive and prejudicial, and the district

court plainly erred in failing to instruct the jury on the elements of wire fraud. Grow

also argues that his twenty-year sentence for conspiracy to commit healthcare and

wire fraud must be reversed because it was more than the maximum sentence

allowed by the jury’s general verdict. After reviewing the record and the briefs, and

considering the parties’ oral arguments, we affirm Grow’s convictions but vacate his

twenty-year sentence for conspiracy to commit healthcare and wire fraud and

remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND

Grow played football in college and the National Football League. But his

football career was short-lived. He suffered a career-ending knee injury and retired

after playing professional football for only two years. Life then took Grow in a

different direction—he invested in real estate and a durable medical equipment

company—before he found himself marketing medical products for a variety of

companies.

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In early 2014, Grow started working for InforMD Solutions, a company that

marketed compounded medications to doctors for a pharmacy. Compounded

medications are made by blending medically active and inactive ingredients into a

mixture. They are designed to serve the particular needs of a patient that would

otherwise be unmet by commercially available medications.

Grow worked for InforMD as an independent contractor and was paid only

commissions. Whenever a doctor prescribed a medication that Grow had

recommended, the doctor would fax the prescription to InforMD, which would then

credit the prescription to Grow’s account and forward it to the pharmacy to be filled.

Grow’s commissions were calculated using a “tiered multilevel structure,” which

meant that he was paid for his own referrals and any referrals made by

representatives he brought in, any representatives brought in by those

representatives, and so on down the pyramid. Grow found it difficult to market

compounded medications for InforMD because the doctors he approached often had

existing relationships with other marketers.

By October 2014, Grow left InforMD and formed his own marketing

company using a similar business model. He teamed up with a pharmacy, Patient

Care America, to market three of its compounded medications: a pain cream; a scar

cream; and a metabolic vitamin. He also brought over two sales representatives and

paid them using the same tiered commission structure. Unlike InforMD, however,

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Grow’s company recruited patients instead of doctors and used telemedicine

companies to prescribe the creams and vitamins to patients.

As the head of operations, Grow “typically did not talk to patients.” Grow

was primarily responsible for helping and recruiting sales representatives, and his

representatives were responsible for soliciting recruits.1 After speaking with a

recruit, Grow’s representatives would fill out an intake form with basic information

about the recruit, including their name, the location of any scars and pain on their

body, and whether they wanted the metabolic vitamin. Depending on the

telemedicine company Grow used, representatives would also include either a

“suggestion” of what the doctor should prescribe or a prefilled prescription for the

doctor to do nothing more than sign.

Grow told his representatives to “always” use the prescription codes p-01 for

the pain cream and sc-01 for the scar cream because they “paid the highest

reimbursement from the insurance company.”2 Grow also told his representatives

to pick the largest size for each cream—360 grams—because it “paid the highest

1 We use the term “recruit” to refer to any Tricare eligible beneficiary solicited by Grow’s sales representatives to receive prescriptions for Grow’s pain creams, scar creams, or metabolic vitamins. 2 The code p-01 corresponded to a formulation designed to treat “general pain [and] inflammation.” The other pain formulations were designed to treat neuropathic pain and chronic pain. The code sc-01 corresponded to a transdermal formulation designed to treat “all scar[s].” The other scar formulations were gel based. 4 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 5 of 44

insurance payment” and would give them “the highest commission.” 3 And he said

to mark as many refills as possible (either three or six, depending on the telemedicine

company) because he and his representatives got “commissions on all the refills.”

After everything had been filled out, Grow would forward the materials to a

telemedicine company, which would arrange for a doctor to call the recruit. If the

telemedicine doctor couldn’t reach the recruit, the recruit’s file would be

“cancelled.” If the doctor got ahold of the recruit, the doctor would conduct a brief

consult—typically between five and seven minutes, but sometimes as short as three

minutes—and prescribe Patient Care’s creams and vitamins. Recruits would

“rarely” be rejected. For one of the two telemedicine companies Grow used, doctors

issued prescriptions to ninety-seven percent of recruits they spoke with. The

telemedicine companies charged Grow a “consult fee” each time one of their doctors

spoke with a recruit.

Once a doctor issued a prescription, the telemedicine company would fax it to

Grow. If the most expensive options had not been prescribed, Grow “would get

upset and get [the prescription] changed” by complaining to the telemedicine

company’s owner. When Grow was satisfied with a prescription, he would forward

it to Patient Care. Patient Care would then fill the prescription, mail the creams and

3 The creams came in four sizes: 120 grams, 180 grams, 240 grams, and 360 grams. All were considered to be a monthly supply. To use up the 360-gram cream in a month, a patient would need to apply the cream at least twelve times a day. 5 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 6 of 44

vitamins to the recruit, and submit a claim for reimbursement to the recruit’s

insurance company. Patient Care would also charge recruits a copay, but Grow told

recruits (and told his representatives to tell their recruits) that they didn’t need to pay

their copays because Patient Care would never collect on them. Grow and his

representatives usually were correct about that, but sometimes Patient Care would

send follow-up bills to recruits. When that happened, Grow told his representatives

that they could pay the copays for the recruits.

Grow’s company marketed exclusively to recruits insured by Tricare, the

government’s health insurance program for military personnel and their families.

From his time at InforMD, Grow knew that Tricare was “the best payer” because it

would always approve claims for compounded medications. And Tricare paid for

Patient Care’s creams and vitamins at exorbitant rates. A single bottle of the

metabolic vitamins cost Patient Care only $76.90 to produce but was reimbursed by

Tricare at a rate of $6,164.31—a profit of $6,087.41. The profit on 360-gram jars

of pain and scar cream was $5,329.15 (for a jar of pain cream) and $15,729.82 (for

a jar of scar cream). Grow split the profits with Patient Care evenly, which meant

that he earned approximately $13,500 for each recruit that ordered the creams and

vitamins. Grow received the same percentage commission on any refills, too.

If one of Grow’s sales representatives referred a recruit who got prescribed

creams and vitamins, Grow would share a cut of his commission with that

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representative and any other representatives in their “upline.” The payout differed

depending on the representative and their position in the hierarchy. Some, at the

bottom, received only a two-percent cut of the profits. Grow’s most successful sales

representative—Ginger Lay—received a forty-percent cut, minus the cost for the

telemedicine consults.

Grow’s representatives weren’t the only ones getting paid. Some recruits got

paid commissions just for ordering their own creams and vitamins. Grow also

helped Lay set up a survey program where recruits were paid $1,000 a month to try

the creams and vitamins and write about their experiences. Lay did nothing with the

results of the survey; its purpose was simply “[t]o refer more Tricare beneficiaries

and get paid commissions.”

Aside from earning commissions, Grow also made money by selling Patient

Care a wetting agent to use in its creams. Specifically, Grow sold ethoxydiglycol

under the brand “Ethoxy Gold” for $12.50 per milliliter, which Tricare would

reimburse at somewhere between $55 to $60 per milliliter. Grow told Patient Care

that the reimbursement rate for Ethoxy Gold was “advantageous” and it could use

Ethoxy Gold to fill up to twenty percent of the total volume of a cream.

At its peak, Grow’s company was making $2 million every two weeks and

had approximately 130 sales representatives covering as many as 650 recruits. Grow

did not let his earnings go to waste—he bought two jet skis for $24,521.36, a

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Range Rover for $90,478.45, a Porsche 911 for $105,544.94, and a waterfront

mansion for $1,539,815.42. However, sometime in May 2015 Tricare caught on and

stopped paying for Patient Care’s creams and vitamins, so Grow’s business “ceased

to exist.”

PROCEDURAL HISTORY

In November 2016, a grand jury indicted Grow in the Southern District of

Florida. Grow was later charged in a superseding indictment with the following

counts:

Count 1: conspiracy to commit healthcare fraud and wire fraud, in violation of 18 U.S.C. section 1349;

Counts 2–8: healthcare fraud, in violation of 18 U.S.C. section 1347;

Count 9: conspiracy to pay and receive healthcare kickbacks, in violation of 18 U.S.C. section 371; 4

Counts 10–14, receipt of kickbacks in connection with a 17–18, 20, federal healthcare program, in violation of 42 22–26, 28–335: U.S.C. section 1320a-7b(b)(1)(A);

4 Count nine charged three objects: (a) soliciting and receiving kickbacks from Patient Care for referring patients, in violation of 42 U.S.C. section 1320a-7b(b)(1)(A); (b) offering and paying kickbacks to patients for ordering medications, in violation of section 1320a-7b(b)(2)(B); and (c) offering and paying kickbacks to representatives for referring patients to Patient Care, in violation of section 1320a-7b(b)(2)(A). 5 The unlisted counts were against Lay, who was charged as a codefendant. Lay pleaded guilty to conspiring with Grow to commit healthcare fraud and testified against Grow at his trial. 8 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 9 of 44

Counts 36–41, payment of kickbacks in connection with a 43–44: federal healthcare program, in violation of 42 U.S.C. section 1320a-7b(b)(2)(B);

Counts 45–49: money laundering, in violation of 18 U.S.C. section 1957; and

Counts 50–51: misbranding drugs, in violation of 21 U.S.C. sections 331(k) and 333(a)(1) The case went to trial in January 2018. In opening statements, the government

said it would prove that Grow was running a “pyramid scheme of kickbacks” to

induce Tricare beneficiaries to order expensive creams and vitamins that they didn’t

need. For his part, Grow, through his attorney’s opening statement, described

himself as a “salesperson” and “marketer” who set up a “multi-level marketing

company.” He said he had “one rule”—that recruits had to “need the product”—and

that he complied with the rule by having telemedicine doctors prescribe the creams

and vitamins to the recruits he marketed to. The doctors, Grow said, had

“independent judgment” whether to prescribe the creams and vitamins, and he

purposely paid the telemedicine companies a flat fee for consults—regardless if

creams and vitamins were ultimately prescribed to the recruit—so that his payments

wouldn’t be considered illegal kickbacks. To the extent recruits received creams

and vitamins that they didn’t need or without speaking to a doctor, Grow said they

were “outliers” and that “mistakes . . . were made.”

The jury heard from several recruits involved in Grow’s scheme, many of

whom testified that they didn’t need the creams and vitamins prescribed to them. 9 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 10 of 44

For example, 68-year-old Philip Snodgrass said that he wasn’t looking for a pain

cream, scar cream, or vitamins when one of Grow’s representatives called him to

market the compounded medications. Nor was he already taking pain medications

or scar remedies. Instead, he got the creams and vitamins because he was promised

money. And when he later got the creams and vitamins but learned that he’d have

to pay a copay, he complained to Patient Care.

Witness after witness told a similar story. Blair Von Letkemann said he was

approached by a friend about the creams because the friend “knew that [Von

Letkemann] was having . . . financial issues.” Von Letkemann didn’t think he

needed the creams, but he signed up for the survey anyway because “[i]t was an easy

way to make a little bit of extra money.” Even after he tried the creams, he didn’t

think the pain cream worked and the scar cream was no better than “standard lotion.”

Von Letkemann never even spoke to a doctor before receiving the creams. If he

knew Tricare had to pay more than $25,000 for the creams, he never would have

agreed to order them.

James Featherston also testified that he wouldn’t have ordered the creams and

vitamins if he knew how much Tricare was paying for them. And he wasn’t looking

for a pain cream or scar cream when one of Grow’s representatives approached him

about the recruit survey. Although he signed up for it, he called Patient Care to

complain as soon as it looked like he wasn’t going to get paid. Featherston also said

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that a man called him to discuss the creams and vitamins after he signed up for the

survey, but he didn’t remember the man ever saying he was a doctor. Nor did

Featherston remember speaking to Pamela Svendsen, the prescribing physician

listed on his prescription.

Nichole Powell also said that she didn’t need the creams and vitamins she

signed up for. And she received some of the creams and vitamins before speaking

to a doctor. She recruited her husband to sign up for the creams and vitamins and

he also received them without speaking to a doctor. Powell said she would not have

ordered the creams and vitamins if she had to pay a $60 copay for them. “Deep

down inside [she] felt like [she] was doing something wrong every time [she] got

paid.”

Rosalinda Rambaran ordered the creams and vitamins for herself, her

husband, and her adult son. When asked why she signed up her husband, she said:

“[i]t was just a way that I could make some money.” Similarly, Rambaran’s son said

that he signed up for the creams and vitamins “[t]o help [his] family get some

money.”

Jill Cichowicz testified that she got paid simply for ordering her own creams

and vitamins. She thought she was signing up for a job opportunity but instead got

“paid to do nothing.” A red flag went up in her mind as soon as she got her first

payment.

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Josie Brundige testified that she never spoke with a doctor about the cream

she received. She received the scar cream even though she did not have any scars

and despite the fact that the intake form Grow’s representative prepared for her also

said that she had no scars.

Mike Ewton said that he didn’t need the creams and vitamins he received. He

decided to sign up himself and his wife for the creams and vitamins because of their

financial troubles. They “needed some money and everybody was getting some

money and [they] wanted a piece.” To Ewton, “[i]t felt dirty to begin with.”

Jonelle Coronado testified that Grow told her she could get paid for ordering

her own creams and vitamins. Taking Grow’s advice, she did order her own creams

and vitamins, but she soon decided to stop the shipments because she “felt like [she]

had gotten a large amount of money . . . for doing nothing.”

Grow moved for judgment of acquittal on all counts at the end of the

government’s case and again at the close of evidence. He specifically argued that

the government failed to prove healthcare fraud because there was no evidence that

any of the claims submitted to Tricare were fraudulent—in other words, there was

no evidence that the claims contained false information or omitted material

information. Grow also argued that, even if some claims were fraudulent, there was

no evidence that he knew they were fraudulent.

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In response, the government argued that the claims were fraudulent because

recruits were induced by kickbacks to order creams and vitamins that they didn’t

need, recruits were told they didn’t need to pay copays or had their copays paid for

them, Grow told his representatives to always select the most expensive options,

Grow paid for the telemedicine doctors’ consults and complained when they didn’t

prescribe the most expensive options, some recruits received creams and vitamins

without even speaking to a doctor, and Grow “fraudulently inflate[d]” the price of

the creams with Ethoxy Gold. The government argued that a reasonable jury could

rely on the circumstantial evidence in the record to infer Grow’s knowledge of the

fraud. The district court entered judgment of acquittal for Grow on the misbranding

charges but otherwise denied his motion.

The district court then held a charge conference. Grow’s proposed

instructions did not include language instructing the jury on the elements of wire

fraud—one of the dual objects of the conspiracy charged in count one. The district

court adopted Grow’s proposed conspiracy instruction—the one that did not include

an instruction on the elements of wire fraud. As a result, the jury was never

instructed on the elements of wire fraud.

The jury began its deliberations on a Wednesday morning. Before giving the

case to the jury, the district court explained: “There’s no minimum time, no

maximum time. Now you are in control of how long you work.” The jury continued

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its deliberations the following day, and the district court again told the jury: “[t]ake

as long as you want . . . to decide, and we’ll see you whenever you want to be seen.”

By Friday afternoon, the jury had still not returned a verdict. The district court

proposed telling the jury that it could continue “to work till five” and then “come

back [on] Monday.” The court also suggested that it would tell the jury: “if you have

reached any decision on any count, you can take partial verdicts.” Grow objected,

arguing that the court “should not be getting in the purview of [the jury’s]

deliberations.” He claimed that the court’s proposed instruction would prejudice

him by giving the jury “the opportunity to say, we give up, we’re going to

compromise.” The district court overruled Grow’s objections and instructed the jury

as follows:

Several things I want to tell you. First, I always give an opportunity to the jurors, just like I did for you to walk during lunch, to walk into the courtroom. Sometimes that’s a good thing, and I told you when we selected you as jurors, and even now, there’s no minimum time and there’s no maximum time. So I don’t want you to think that anybody, certainly not the judge, is interfering. Remember, I said I’m a judge of the law, you’re the judge of the facts. You take as long as you want or as little as you want.

But since I’m giving you the opportunity to stretch your legs— it’s not even the seventh inning stretch because you decide how long you stay, and I wanted to tell you because of a scheduling conflict that I have at the end of the day, though some days we have worked till 6:30 and thereabouts, today we are going to work only until around 5:00. Okay? That doesn’t mean that you have to reach a decision by 5:00 on any count or on all the counts. You can decide how many counts you want to reach decisions on, what counts you cannot reach decisions on, reach decision on all, one way or another. That’s your business, not the 14 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 15 of 44

judge’s business. There’s never any minimum. But out of courtesy, then I’ll bring you back. Like I told you, now you’re the decision- makers of your time, not just of the very important thing of deciding whether the Government has proven its allegations on each count. You’ll come back on Monday and I have another jury trial, but we’ll let you use the same jury room and we’ll figure out what to do. We’ve done that already in this case.

But I don’t want you to misinterpret. I usually take an afternoon break with the jurors to see how long it takes. You’re very conscientious. Both sides are very appreciative of the care based on the questions that you’ve asked and how you are looking at exhibits in this very complicated case, going count by count. You do what you want and you’re free to ask questions if you want of each other. You don’t even have to ask me any questions.

But out of courtesy, I thought I would let you know, because we have worked till 6:30 sometimes, that today it will be 5:00. Again, that’s not an indication that you should reach a decision on all counts before then. You decide what you want to do, when you want to do it and how you want to do it. All right?

So I’m going to be doing other things. So you keep working. We won’t interfere with you. All right?

Thank you very much. We’ll see you whenever you want to be seen.

Later that afternoon, the jury sent out a note saying that it wanted to leave for

the day. Before releasing the jury, the district court reiterated:

No minimum, no maximum time. Take all the time you want . . . . We want you to be conscientious, take this seriously, as you have, and take all the time you want. I’ll be doing other things, so we will find another jury room. There’s never any pressure whatsoever on you, except to follow the law and look at the evidence and I think that’s what you’re doing, and take all the time you want.

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The court told the jury to return on Monday morning at 8:30 a.m. and said that the

jury would only be deliberating until 1:00 p.m. because one of the jurors had to leave

for a doctor’s appointment. The court encouraged the jurors to bring something to

eat because they would be working “straight through” without a lunch break.

However, the court made clear that the jury could take as long as it wanted: “Just

work straight through, and then Tuesday, Wednesday, Thursday, Friday, Saturday,

there’s absolutely no problem whatsoever.”

On Monday, the jury had not yet reached a verdict by noon. Without

objection, the district court reminded the jury that there wouldn’t be a lunch break

because the jury would be retiring at 1:00 p.m. to accommodate a juror’s doctor’s

appointment. The court repeated that there was “no maximum time,” the jury could

“take as long as [it] want[ed],” and the jury would return to continue deliberations

the following morning if it did not reach a decision by 1:00 p.m. The court also

polled the jury about scheduling conflicts for the next few days.

At 12:48 p.m., the jury returned a complete verdict. The jury entered a general

verdict of guilt on count one, finding Grow guilty of conspiracy to commit

healthcare fraud and wire fraud without specifying which object Grow had conspired

to commit. The jury also found Grow guilty of healthcare fraud involving recruit

Blair Von Letkemann as charged in count five. Finally, the jury found Grow guilty

of conspiracy to pay and receive kickbacks, thirteen counts of receiving kickbacks,

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and one count of money laundering. The jury acquitted Grow on all remaining

counts.

The probation office later prepared a presentence report that listed the

maximum penalty for count one as twenty years’ imprisonment, the statutory

maximum for conspiracy to commit wire fraud. See 18 U.S.C. § 1343. Grow

objected to the report and argued that he should be sentenced based on the ten-year

statutory maximum for healthcare fraud. He contended that because the jury

returned a general verdict it was impossible to tell whether the jury had found him

guilty of conspiracy to commit healthcare fraud, conspiracy to commit wire fraud,

or both. The district court overruled Grow’s objection. The court calculated Grow’s

guideline range at 210 to 262 months’ imprisonment and sentenced him to

240 months on count one (the statutory maximum for conspiracy to commit wire

fraud), 22 months on count five to run consecutively to count one, and 60 months on

all other counts to run concurrently. The district court also sentenced Grow to three

years of supervised release on all counts.

DISCUSSION

Grow raises four issues on appeal. First, he challenges the sufficiency of the

evidence on all counts. Second, he argues that the district court’s instruction to the

jury on Friday afternoon, during the third day of deliberations, was coercive and

prejudicial. Third, he contends that the district court plainly erred in failing to

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instruct the jury on the elements of wire fraud. And fourth, he argues that his

sentence for conspiracy to commit healthcare fraud and wire fraud exceeded the

statutory maximum allowed by the jury’s general verdict.

Sufficiency of the Evidence

“We review de novo the sufficiency of the evidence to support a conviction,

viewing the evidence in the light most favorable to the verdict and drawing all

reasonable inferences and credibility choices in the verdict’s favor.” United States

v. Deason, 965 F.3d 1252, 1262 (11th Cir. 2020) (citation omitted). “A guilty verdict

‘cannot be overturned if any reasonable construction of the evidence would have

allowed the jury to find the defendant guilty beyond a reasonable doubt.’” Id.

(citation omitted). “The evidence need not ‘exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except that of guilt,’”

United States v. Cabezas-Montano, 949 F.3d 567, 595 n.27 (11th Cir. 2020) (citation

omitted), because “the issue is not whether a jury reasonably could have acquitted

but whether it reasonably could have found guilt beyond a reasonable doubt,”

United States v. Campo, 840 F.3d 1249, 1258 (11th Cir. 2016) (citation omitted).

“The test for sufficiency of evidence is identical regardless of whether the evidence

is direct or circumstantial, and no distinction is to be made between the weight given

to either direct or circumstantial evidence.” United States v. Guevara, 894 F.3d

1301, 1307 (11th Cir. 2018) (citation and quotation marks omitted).

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Conspiracy to Commit Healthcare and Wire Fraud

The jury convicted Grow of conspiracy to commit healthcare and wire fraud.

A person is guilty of healthcare fraud if, “in connection with the delivery of or

payment for health[care] benefits, items, or services,” he knowingly and willfully

executes a scheme “to defraud any health[care] benefit program” or “to obtain, by

means of false or fraudulent pretenses, representations, or promises, any of the

money or property owned by, or under the custody or control of, any health[care]

benefit program.” 18 U.S.C. § 1347(a); see also id. § 1349 (prohibiting conspiracies

to commit healthcare fraud). To convict Grow of conspiracy to commit healthcare

fraud, the jury had to find: (1) that the conspiracy existed; (2) that Grow knew of the

conspiracy; and (3) that he knowingly and voluntarily joined the conspiracy. See,

e.g., United States v. Chalker, 966 F.3d 1177, 1185 (11th Cir. 2020). The jury was

entitled to rely on circumstantial evidence to find a healthcare fraud conspiracy, and

it didn’t need to find that Grow “knew all of the details or participated in every aspect

of the conspiracy.” Id. (citation omitted). Instead, the jury simply had to find that

Grow “knew of the essential nature of the conspiracy.” Id. (citation omitted).

Grow does not contest that Tricare was a healthcare benefit program within

the meaning of section 1347. And he does not dispute that he targeted Tricare or

that Tricare paid millions of dollars for the creams and vitamins he peddled. Instead,

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Grow argues “[t]here was no evidence that any claim Patient Care . . . made to

Tricare was fraudulent, much less that [he] knew any to be.”

We conclude that there was sufficient evidence of fraud. Recruits were

prescribed, and Tricare was billed for, pain creams, scar creams, and vitamins that

were not medically necessary. See United States v. Gonzalez, 834 F.3d 1206, 1214

(11th Cir. 2016) (“A person makes a false claim if the treatments that were billed

were ‘not medically necessary or were not delivered to the patients.’” (alteration

adopted and citation omitted)). Blair Von Letkemann testified that he never spoke

to a doctor before receiving the creams. Nichole Powell testified that she didn’t need

the creams and vitamins, and she received some of them before talking to a doctor.

Powell’s husband likewise received the creams and vitamins before talking to a

doctor. Josie Brundige testified that she got the creams and vitamins even though

she didn’t have any scars and never spoke to a doctor. And Mike Ewton testified

that he didn’t need the creams and vitamins he received.

It is no answer to say, as Grow does, that the creams and vitamins were

“provided pursuant to valid prescriptions issued by doctors who lawfully consulted

with the patients telephonically.” A doctor’s prescription is not a get-out-of-jail-free

card. We have found sufficient evidence of healthcare fraud or conspiracy to commit

healthcare fraud even where a doctor prescribed the treatment or medication. See,

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e.g., United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012); United States v.

Mateos, 623 F.3d 1350 (11th Cir. 2010).

For example, in Ignasiak a licensed medical doctor was convicted of

healthcare fraud because he prescribed “unnecessary or excessive quantities of

controlled substances without a legitimate medical purpose.” 667 F.3d at 1219. We

concluded there was sufficient evidence of fraud even though his employees testified

that he “always interviewed and examined his patients before they got a

prescription.” Id. at 1220–21, 1227–29. Similarly, in Mateos, a doctor and a nurse

were convicted of conspiracy to commit healthcare fraud for their work at an HIV

clinic. See 623 F.3d at 1354. The clinic had doctors prescribe HIV treatments to

the patients, id. at 1356–57, but we still concluded that the evidence was sufficient

to support the defendants’ convictions, id. at 1361–63. As for the defendant doctor,

we relied on the circumstantial evidence that showed the treatments were medically

unnecessary. Id. at 1362. Specifically, we noted that the doctor “was trained . . . to

document each patient’s chart in the same manner; . . . she was present when patients

at [the clinic] screamed about wanting more money; and the billing code number on

the Medicare superbills she signed was always the same, regardless of what the

patient charts said.” Id. As for the defendant nurse, we rejected her argument that

she “merely provided the patients with treatments the doctors prescribed.” See id.

at 1363. We concluded that “[t]he presence of fraud at [the clinic] was so obvious

21 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 22 of 44

that, as with [the doctor], [the nurse’s] knowledge of its character could fairly be

attributed to her.” Id.

The issue in Ignasiak and Mateos was not whether a doctor prescribed

whatever was billed to the benefit program, but whether what was billed was

medically necessary. Here, as in those case, there was sufficient evidence that the

patients were receiving medically unnecessary treatments and prescriptions.

We also conclude that there was sufficient evidence of Grow’s knowledge of

the fraud and his intent to defraud. “[I]n a health[care] fraud case, the defendant

must be shown to have known that the claims submitted were, in fact, false.” United

States v. Medina, 485 F.3d 1291, 1297 (11th Cir. 2007). “Although the government

must prove the defendant’s knowledge of falsity, a defendant’s knowledge can be

proven in more than one way.” United States v. Clay, 832 F.3d 1259, 1311 (11th

Cir. 2016). “Representations made with deliberate indifference to the truth and with

intent to defraud adequately satisfy the knowledge requirement in [section] 1347

cases.” Id. Here, the jury could reasonably find that recruits didn’t need the creams

and vitamins they were prescribed, that Grow was deliberately indifferent to that

truth, and that he had an intent to defraud.

First, there was evidence that Grow and his representatives told the

telemedicine doctors what to prescribe before the doctors consulted with recruits.

Specifically, representatives prepared prefilled prescriptions or intake forms with

22 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 23 of 44

suggestions, which Grow forwarded to the telemedicine companies. Grow told his

representatives to “always” select the same options, noting that they paid “the

highest reimbursement from the insurance company” and would result in “the

highest commission.” Grow was indifferent to whether the recruits actually needed

the creams and vitamins; when Lay asked him what she should do if a recruit didn’t

have a scar, Grow said: “everybody has scars, so always choose a scar cream.” At

least one recruit received scar cream despite not having any scars. Grow knew the

recruit didn’t have any scars because her intake form that the recruit’s representative

sent to Grow said just that.

Grow argues that this evidence shows he was simply doing what “many

pharmaceutical sales representatives do.” But a reasonable jury could find

knowledge of the fraud, and an intent to defraud, from Grow sending prefilled

prescriptions and intake forms to the telemedicine companies already checked off

with creams and vitamins that had the highest reimbursement rates, with the most

refills, and in the largest sizes.

In United States v. Melgen, 967 F.3d 1250, 1255–56 (11th Cir. 2020), for

example, the government charged a doctor with Medicare fraud because he

prescribed medically unnecessary treatments for a particular eye condition. The

government “alleged that the scheme involved ‘pre-filling’ some patient files so that

[the eye condition] was a default diagnosis even before [the defendant] met with a

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patient.” Id. at 1256. On appeal, the defendant challenged the sufficiency of the

evidence and argued that “the evidence supported a finding that any ‘mistakes’ in

diagnosing patients were not willfully false and that he reasonably believed the

treatments were required.” Id. at 1263. We rejected his argument because it went

“to the weight of the evidence, and not its sufficiency.” Id. Although the defendant

had offered innocent explanations for some of the evidence against him—he claimed

that “pre-prepping diagnoses before [he] saw patients might have led to honest

mistakes”—we said “those explanations were for the jury to weigh, not us.” Id. And

we concluded that the jury reasonably could have “seen pre-prepping as a sign of

[his] willful choice to treat the vast majority of his patients . . . whether or not it was

medically necessary.” Id.; see also United States v. Pon, 963 F.3d 1207, 1236–37,

1239 (11th Cir. 2020) (concluding that there was “overwhelming evidence” of

doctor’s healthcare fraud and noting he had prefilled some patients’ diagnostic charts

before seeing the patients).

Second, there was evidence that Grow regularly complained to the

telemedicine company owners about their doctors’ prescriptions. Specifically, Lay

testified that if the most expensive options had not been prescribed, Grow “would

get upset and get [the prescription] changed.” This was borne out in several emails

the government introduced into evidence. Grow wrote to one company’s owner,

“After your first dr would not write a script for scar, i had my other telemed network

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go to work on it.” Grow also complained that a particular doctor “[did] not write

refills” and said, “Do you have another dr in [New York] to consult this patient or

do i need to pursue other avenues?” Grow complained about the same doctor to

another company’s owner, stating that the doctor was “terrible” because he “[didn’t]

write half the time and [gave] 0 refills.” One time, the owner of a telemedicine

company reached out to Grow and asked, “What do you need on this one?” Grow

answered that he needed the most expensive options: “360 grams checked and

refills.” Grow would not rest even on a holiday—at 7:52 p.m. on New Year’s Eve,

Grow wrote to one company’s owner that he “received 3 scripts back . . . from 2

different dr’s and neither one of them wrote for 360 grams.” Grow continued, “This

is a tremendous difference in reimbursement. Is there a way we can fix this?”

Grow suggests that this evidence shows he was simply seeking “a second

doctor’s opinion.” But a reasonable jury could find an intent to defraud from Grow’s

complaints about the “tremendous difference in reimbursement” and his threats to

“pursue other avenues.” Grow’s complaints and threats could reasonably be seen as

pressuring the telemedicine doctors to prescribe the most expensive options even if

there was no medical need for the expensive compounded medications.

Third, there was evidence that Grow pushed Patient Care to use a premium

ingredient in its compounded medications that was vastly more expensive but

otherwise identical to the regular ingredient. (The district court called this “the

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spaghetti in fancy Italian restaurants.”) Specifically, Grow sold Patient Care his

brand of ethoxydiglycol—Ethoxy Gold—and emphasized its “advantageous”

reimbursement rate. But Patient Care could also buy “regular ethoxydiglycol” from

a wholesaler for much cheaper, which Tricare reimbursed at a much less generous

rate. Patient Care’s lead pharmacy technician testified that he saw no functional

difference between Ethoxy Gold and regular ethoxydiglycol. If anything, Ethoxy

Gold was less convenient because it came in one-milliliter vials instead of four-liter

jars like regular ethoxydiglycol. In fact, Patient Care stopped using Ethoxy Gold as

soon as Tricare dramatically reduced its reimbursement rate.

Grow argues that the Ethoxy Gold evidence shows he simply wanted to profit

from Tricare’s favorable reimbursement rates. But a jury could reasonably conclude

that Grow and Patient Care used Ethoxy Gold for no other reason than to

fraudulently inflate Tricare’s reimbursement rates.

In Melgen, for example, the defendant regularly prescribed a $2,000 drug and

“only rarely prescribed” the equivalent, less expensive drug that cost $50. 967 F.3d

at 1255. We explained that the defendant’s profit motive was evidence of his intent

to defraud. See id. at 1263. In another recent case, the defendant’s fraud scheme

included billing for expensive off-site urine tests instead of in-office tests because

they generated more revenue. United States v. Ruan, 966 F.3d 1101, 1125–26 (11th

Cir. 2020). On appeal, we held that this was evidence of healthcare fraud. Id. at

26 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 27 of 44

1143. Similar to Melgen and Ruan, Grow and Patient Care’s profitable use of

Ethoxy Gold served no benefit—it was a medically inactive ingredient and was less

convenient to use.

Fourth, there was evidence that Grow made a huge profit from the fraud. He

made about $13,500 for each recruit that signed up for all three of Patient Care’s

compounded creams and vitamins. And he earned the same amount on any refills.

In total, Grow made almost $20 million in gross profits.

Grow argued at trial that this showed “his goal was to make money within the

confines of the law.” But a reasonable jury could find an intent to defraud from the

money Grow made from billing Tricare for creams and vitamins that were not

medically necessary. As we’ve explained, “[e]vidence that the defendant profited

from a fraud may . . . provide circumstantial evidence of the intent to participate in

that fraud.” United States v. Machado, 886 F.3d 1070, 1083 (11th Cir. 2018); see

also United States v. Bajoghli, 785 F.3d 957, 966–67 (4th Cir. 2015) (“[E]vidence

of financial gain is particularly probative in a fraud case to establish the defendant’s

intent to defraud.”). In Machado, for example, we found that the defendant’s profit

was “circumstantial evidence of his intent” where he fraudulently obtained $739,900

in mortgage loans. Id. at 1074, 1083. In another case, we said the defendant’s profit

of “over $450,000” was evidence of his intent to defraud. United States v. Naranjo,

634 F.3d 1198, 1207–08 (11th Cir. 2011). Grow’s profits were forty times more.

27 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 28 of 44

Fifth, there was evidence that Grow and Patient Care tried to conceal aspects

of their scheme. Patient Care told Grow that he needed to remove his fax number

from the prescriptions he submitted because they could “only have the MD’s fax

info or nothing at all.” Patient Care later warned Grow not to “show outside fax #’s

on these Rx’s” because “[t]here is a HIPPA [sic] concern around unsecure pathways

& patient brokering concerns when speaking around scripts not coming directly from

the MD.” Patient Care again told Grow: “Cannot have md to u to us trail.” As a

result, both Grow and Lay started whiting-out their fax numbers on prescriptions.

Grow also became concerned that there was an issue with Patient Care paying

commissions to independent contractors like him because it could violate the anti-

kickback statute. Patient Care and Grow then decided that “everybody had to

become W-2 employees,” and Patient Care hired over a hundred of Grow’s

representatives. No one from Patient Care met or interviewed any of Grow’s

representatives before hiring them. Nor was Patient Care particularly concerned

with the representatives’ credentials. One of the people hired was a teenager who

had last worked as a part-time cook at a pizza buffet; his responsibilities there

included “mak[ing] sure the buffet [was] always fresh.” Another representative

“already had a job” and accepted Patient Care’s offer only so he could keep getting

commission payments. No one was trained. Patient Care fired everyone only six to

eight weeks later when Tricare stopped paying for the compounded medicines.

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Grow argues that this evidence shows he relied in good faith on Patient Care’s

instructions on how to comply with the law. But a reasonable jury could also find

that Grow and Patient Care were trying to conceal the fraud scheme. See United

States v Schmitz, 634 F.3d 1247, 1251, 1264 (11th Cir. 2011) (finding sufficient

evidence of fraud based, in part, on the defendant “conceal[ing] her scheme by

submitting fraudulent reports about hours worked and work activities”); see also

United States v. Davis, 490 F.3d 541, 549 (6th Cir. 2007) (noting that an intent to

defraud “can be inferred from efforts to conceal the unlawful activity” (citation

omitted)).

Sixth, there was evidence Grow paid his representatives to recruit more people

to order creams and vitamins and the representatives paid recruits and told them they

didn’t have to pay Tricare copays. Grow argued at trial that he thought he was

legally paying commissions to his representatives and any payments to recruits were

mistakes. But a reasonable jury could find that Grow had an intent to defraud

because he paid, and had his representatives pay, kickbacks for the recruits to order

the creams and vitamins. Although paying kickbacks related to healthcare is itself a

type of healthcare crime, “alone,” without some other evidence of fraud, it “is not

sufficient to establish health[care] fraud” in violation of sections 1347 and 1349.

Medina, 485 F.3d at 1298. But, together with other evidence, we’ve treated paying

kickbacks as evidence of healthcare fraud. See, e.g., Gonzalez, 834 F.3d at 1216

29 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 30 of 44

(finding evidence sufficient to support conspiracy to commit healthcare fraud and

emphasizing that the defendant “was personally involved in paying cash kickbacks

behind locked doors to each and every recruit who was purportedly treated” which

“practically scream[ed] that something amiss was taking place”). Paying recruits

and recruiters gave them a financial incentive to order more and expensive creams

and vitamins that were not medically necessary. As the recruits testified at trial, they

didn’t need the creams and vitamins and only ordered them because they wanted to

get paid.

Finally, Grow’s own trial testimony was sufficient evidence of his knowledge

of the fraud and his intent to defraud. In a healthcare fraud case, as in other criminal

cases where intent and knowledge are in dispute, we’ve said that “[a] defendant who

chooses to testify runs the risk that the jury will disbelieve [his] testimony, and ‘runs

the risk that if disbelieved the jury might conclude the opposite of [his] testimony is

true.’” Mateos, 623 F.3d at 1362 (citation omitted). “This is especially so in cases

. . . that turn mainly on subjective elements, like a defendant’s intent or knowledge.”

Id. So when Grow testified that he didn’t intend to violate any law, he didn’t think

he did anything illegal, he thought doctors were writing prescriptions for creams and

vitamins that recruits actually needed, he didn’t know that any recruits had been paid

for their own prescriptions, and he never caused a fraudulent claim for payment to

be filed, the jury was entitled to conclude that he was lying and infer the opposite

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was true. Id. (“When Alvarez insisted that she did not know that the procedures she

prescribed were medically unnecessary, or that the bills she signed were being

doctored to obtain payment from Medicare, the jury was entitled to conclude that

she was lying, and we must accept that credibility determination.”). We conclude

that the evidence was sufficient to support Grow’s conviction for conspiracy to

commit healthcare fraud. 6

Healthcare Fraud

The jury convicted Grow of healthcare fraud based on Tricare reimbursing

Patient Care for a pain cream prescription that was filled for Blair Von Letkemann.

Grow argues the evidence shows that “nothing about that prescription was false or

fraudulent.” Grow also argues that the evidence “does not prove that [he]

participated in this offense” because he “never met [V]on Letkemann and had

nothing to do with his prescription; Lay alone recruited [Von Letkemann] using her

survey.”

“A defendant may be convicted of health[care] fraud if he aid[s], abets,

counsels, induces, or procures the commission of the offense, or if he willfully

causes the offense to be committed.” United States v. Sosa, 777 F.3d 1279, 1292

(11th Cir. 2015) (citing 18 U.S.C. § 2). Here, the government charged Grow with

6 We do not address the wire fraud object of the conspiracy because “[t]his Court has long held that where there is a conviction for a multi-object conspiracy, the evidence must only be sufficient to sustain a conviction for any one of the charged objectives.” Medina, 485 F.3d at 1301. 31 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 32 of 44

aiding and abetting, so it didn’t need to prove that Grow met or recruited

Von Letkemann. Instead, it had to show that “(1) someone committed the

substantive offense; (2) [Grow] contributed to and furthered the offense; and

(3) [Grow] intended to aid in its commission.” See id. In other words, the

government had to prove that Grow took an affirmative act in furtherance of the

fraud with the intent of facilitating its commission. See id.

Here, there was sufficient evidence that Von Letkemann’s prescription was

fraudulent. Von Letkemann testified that he signed up for Lay’s survey not because

he needed the creams, but because “[i]t was an easy way to make a little bit of extra

money.” He also said that he didn’t speak with a doctor before receiving the creams.

And Lay said she knew that recruits didn’t need the creams and vitamins she was

recommending; according to her, it “was never even a question.” It was clearly

fraudulent to bill for creams and vitamins that a recruit didn’t need and which he

was somehow prescribed without speaking to a doctor. See Gonzalez, 834 F.3d at

1214 (“A person makes a false claim if the treatments that were billed were ‘not

medically necessary . . . .’”) (alteration adopted and citation omitted)).

The evidence also showed that Grow took multiple affirmative acts to further

the fraud. Grow helped Lay create the survey that Lay used to recruit

Von Letkemann. Grow discussed the survey with her and had it sent to Patient Care

for review. Grow brought Lay to Patient Care and acted as a self-described “liaison”

32 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 33 of 44

between the two. Grow was the money go-between for all of Lay’s recruits—the

money would go from Patient Care to Grow, Grow would take his cut, and only then

would Grow pay Lay her share based on the prescriptions for Von Letkemann and

all her other recruits. Grow also knew that Lay was paying her recruits like

Von Letkemann, but he kept paying her commissions anyway.

Grow didn’t meet with Von Letkemann because, as the pharaoh on top of the

pyramid, he “typically did not talk to patients.” But Grow’s role was to work with

the representatives—like Lay—and address “any questions that they had.” With

respect to Von Letkemann, Grow did just that by helping Lay with her survey, acting

as her liaison with Patient Care, and paying her a hefty chunk of change. Without

these affirmative acts, Lay could not have recruited Von Letkemann and used him

to commit healthcare fraud.

Finally, there was sufficient evidence for the jury to find that Grow intended

to aid in the commission of the fraud. Grow told his representatives, including Lay,

that when filling out their prefilled prescriptions and intake forms they should

“always” select “the highest reimbursement from the insurance company” because

it would result in “the highest commission.” See Melgen, 967 F.3d at 1263 (“[T]he

jury also could have seen pre-prepping as a sign of Melgen’s willful choice to treat

the vast majority of his patients for ARMD, whether or not it was medically

necessary.”); Pon, 963 F.3d at 1236–38 (finding “overwhelming” evidence of

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healthcare fraud, including that “[t]he record also shows that Pon filled out portions

of some patients’ charts with WMD diagnoses and planned diagnostic tests before

he had even seen the patients”). Grow pushed Patient Care to use a more expensive

ingredient for its creams because of the “advantageous” reimbursement rate, even

though the less-expensive regular ingredient did the same thing and was easier to

use than the one Grow sold. See Ruan, 966 F.3d at 1125–26 (“Prescribing certain

drugs when they had a financial self-interest to do so was not the only example of

illegal conduct by Ruan and Couch: the government also sought to prove that they

ordered unnecessary drug tests for patients solely because they would generate

revenue. . . . In 2013, Ruan began ordering off-site GC-MS testing for every patient

because, in his words, off-site testing ‘generates revenue,’ while in-office urine tests

‘pays nothing.’”); Melgen, 967 F.3d at 1255, 1263 (describing evidence of “motive

and means for fraudulently billing Medicare for an expensive drug,” including:

“One recognized anti-VEGF treatment for wet ARMD is a drug called Lucentis. A

single vial of Lucentis costs approximately $2,000. Between 2008 and 2013,

Melgen’s practice collected nearly $57 million from Medicare for administering

Lucentis. By contrast, Melgen only rarely prescribed Avastin, another drug

recognized as a treatment for wet ARMD that costs only $50.”). Grow made a large

profit from the fraud. Each 360-gram jar of pain cream Tricare was billed yielded a

$5,329.15 profit for Grow and each jar of scar cream resulted in a $15,729.82 profit.

34 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 35 of 44

See Machado, 886 F.3d at 1083 (“Evidence that the defendant profited from a fraud

may also provide circumstantial evidence of the intent to participate in that fraud.”)

Grow paid his representatives, including Lay, to pay recruits so the recruits would

order the creams and vitamins. See Gonzalez, 834 F.3d at 1216 (“What’s more, we

repeat again, Gonzalez was personally involved in paying cash kickbacks behind

locked doors to each and every patient who was purportedly treated with a WinRho

infusion at St. Jude. This arrangement practically screams that something amiss was

taking place at the clinic. Gonzalez’s lack of formal nursing or medical training

would not have affected her ability to recognize the suspicious nature of the activities

in which she was engaged.”). And Grow’s testimony that he didn’t know about the

fraud and didn’t intend to defraud Tricare were sufficient evidence for the jury to

reasonably conclude that he did know and did intend to defraud. See Mateos, 623

F.3d at 1362 (“Alvarez’s own testimony greatly undermines her sufficiency

argument. A defendant who chooses to testify runs the risk that the jury will

disbelieve her testimony, and runs the risk that if disbelieved the jury might conclude

the opposite of her testimony is true.” (quotation marks and alteration omitted)).

Kickback Convictions

Grow challenges his kickback convictions because, he says, there was

insufficient evidence to show that he “intentionally broke the law.” Although Grow

admits that he paid and received the commissions, he argues that “the evidence

35 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 36 of 44

shows that [he] believed in good faith that the commissions he paid and received

were legal.”

The evidence was sufficient for a reasonable jury to conclude that Grow knew

it was illegal to pay and receive illegal kickbacks. Grow testified that he had read

the anti-kickback statute while working with Patient Care. Grow also admitted that,

prior to working with Patient Care, he read and signed agreements requiring him to

comply with federal healthcare laws, including “prohibitions of kickbacks.” Grow

even required Lay to sign a contract that prohibited making “payments to any referral

sources in order to induce any referrals.” Grow admitted that he knew it was illegal

to pay a recruit to obtain a drug or pay a doctor to prescribe a drug, and several of

Grow’s representatives said that he told them the same thing. Although Grow

testified that he didn’t think his actions were illegal and didn’t intend to violate any

law, the jury was permitted to infer that he was lying and conclude the opposite was

true. See id. (“A defendant who chooses to testify runs the risk that the jury will

disbelieve her testimony, and ‘runs the risk that if disbelieved the jury might

conclude the opposite of [his] testimony is true.’”).

Money Laundering

Grow argues that the evidence was insufficient to support his conviction for

money laundering because “the government did not prove that [he] knew that

commissions paid to or received by sales representatives [we]re illegal

36 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 37 of 44

remuneration.” Grow’s money laundering argument is the same as his kickback

argument. Grow essentially argues that because he didn’t know that the kickbacks

were illegal, he also didn’t know that laundering the money he made from the

kickbacks was illegal. We reject this argument for the same reasons we concluded

there was sufficient evidence to support his kickback convictions. Because Grow

read the anti-kickback statute while he was working with Patient Care, read and

signed agreements requiring that he comply with the federal prohibitions on

kickbacks, had Lay sign a contract prohibiting her from paying recruits, and told his

representatives that it was illegal to pay recruits, the jury could reasonably have

concluded that Grow knew it was illegal to pay and receive kickbacks. And because

there was sufficient evidence to support the jury’s conclusion that Grow knowingly

and intentionally paid and received kickbacks for the prescriptions, the evidence was

also sufficient to support Grow’s conviction for laundering the proceeds of the

kickback scheme.

The District Court’s Instruction to the Jury During Deliberations

Grow argues that the district court’s instruction to the jury on Friday

afternoon, during the third day of deliberations, was “coercive and prejudicial.” The

district court, Grow says, told the jury “on a Friday afternoon . . . that it had another

trial starting Monday” and that it “invit[ed] a partial verdict” even though “[t]he jury

37 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 38 of 44

had given no sign that it was deadlocked.” According to Grow, the court unduly

“prod[ded] the jury” and made an “effort to end the case.”

“The applicable standard here is whether under the totality of the

circumstances the trial judge’s instruction to the jury was coercive.” Watson v.

Alabama, 841 F.2d 1074, 1076 (11th Cir. 1988). “Courts may not evaluate a single

jury instruction in isolation, but must view it in light of the overall charge.” Id. “An

instruction may be impermissibly coercive if it ‘give[s] a jury no choice but to return

a verdict[]’ or if it ‘suggest[s] that a particular outcome was either desired or

required.” United States v. Lee, 586 F.3d 859, 865 (11th Cir. 2009) (citation

omitted).

Looking, as we must, at the instructions as a whole, we conclude that the

district court’s instruction was not coercive. Although the district court mentioned

that the jury could reach a partial verdict, it repeatedly told the jury—before, during,

and after the challenged instruction—that there was no minimum time limit and that

the jury could deliberate as long as it wanted. Right before the jury started

deliberating, the district court told the jury there was “no minimum time” and made

clear that the jury was “in control of how long [it would] work.” The district court’s

message was consistent, telling the jury the next day that it could “take as long as

[it] want[ed].” Even when the district court mentioned the option of a partial verdict

on the third day of deliberations, it again emphasized that there was “no minimum

38 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 39 of 44

time” and that it did not want the jury to think that “anybody, certainly not the judge,

[wa]s interfering.” The district court also carefully explained to the jury that the

purpose of its instruction was to keep it apprised of a “scheduling conflict.”

We read the Friday afternoon instruction, together with the district court’s

other instructions, as the district court’s effort to keep the jury updated about the

schedule and the availability of the courtroom. As the former Fifth Circuit,

reviewing a similar scheduling instruction, explained: “We do not interpret the

court’s actions as concern for whether the jurors were having difficulty seeking a

verdict, but rather as concern for the fact that the jury members were entitled to some

guidance since they had not finished their work at the usual adjournment time.” See

United States v. Blevinal, 607 F.2d 1124, 1127 (5th Cir. 1979) (“The court had

initially told the jury that it would sit each day until five or five-thirty, and the jury

was entitled to know by 5:55 p. m. what procedure would be followed as it continued

its work. It does not appear that the court intended to do any more.”).

Critically, the district court’s scheduling instruction did not have a coercive

impact on the jury’s deliberations. After the Friday afternoon instruction, the jury

kept deliberating the rest of Friday and returned to continue its deliberations on

Monday. See United States v. Norton, 867 F.2d 1354, 1366 (11th Cir. 1989) (“The

jury deliberated some four hours after the trial court’s supplementary instruction, a

time period not suggestive of a coercive or pressure-filled atmosphere.”); United

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States v. Alonso, 740 F.2d 862, 878 (11th Cir. 1984) (finding no evidence of

“coercive impact” where “[t]he earliest verdicts after the court gave the challenged

charge were reached five days later”). The jury kept deliberating Monday morning

and into Monday afternoon. When it reached its verdict, the jury did not return a

partial verdict—it addressed all forty-one questions on the verdict form, acquitting

Grow of some charges and convicting him of others. With this record, Grow has not

met his burden to show that the district court’s instruction impermissibly coerced the

jury to cut off its deliberations or to return a partial verdict.

District Court’s Failure to Instruct on Wire Fraud

Grow argues that his conviction for conspiracy to commit healthcare fraud

and wire fraud is invalid because the district court failed to instruct the jury on the

elements of wire fraud—one of the dual objects charged in the indictment. Although

Grow did not object to the district court’s failure to instruct at trial, he argues that he

is entitled to relief under plain error review.

We do not reach the merits of Grow’s argument because he invited the error.

“[W]hen a party agrees with a court’s proposed instructions, the doctrine of invited

error applies, meaning that review is waived even if plain error would result.”

United States v. Frank, 599 F.3d 1221, 1240 (11th Cir. 2010). Here, Grow not only

agreed with the court’s proposed instructions, but his own proposed instructions also

omitted the elements of wire fraud. To the extent the district court erred, it was

40 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 41 of 44

because the district court adopted Grow’s proposed conspiracy instruction—which

did not have the elements of wire fraud—and Grow accepted the instruction during

the charge conference. Under these circumstances, we conclude that Grow has

waived appellate review of the district court’s failure to instruct on wire fraud. See

also United States v. Feldman, 931 F.3d 1245, 1260 (11th Cir. 2019) (“Feldman

cannot obtain reversal based on a jury instruction that he affirmatively accepted, so

we need not consider whether the instruction was erroneous.”).

Grow’s Sentence for Conspiracy to Commit Healthcare Fraud and Wire Fraud

Grow argues that his sentence on count one—the dual-object conspiracy to

commit healthcare fraud and wire fraud—exceeded the statutory maximum allowed

by the jury’s verdict. We review de novo the lawfulness of Grow’s sentence. See

United States v. Moriarty, 429 F.3d 1012, 1023 (11th Cir. 2005).

The district court sentenced Grow to twenty years in prison on count one.

Although this sentence did not exceed the statutory maximum for conspiracy to

commit wire fraud, see 18 U.S.C. § 1343, it exceeded the ten-year statutory

maximum for conspiracy to commit healthcare fraud, see id. § 1347(a). Because the

jury returned only a general verdict on count one, and the jury was instructed that it

could return a guilty verdict if it found that Grow committed either or both objects

of the conspiracy beyond a reasonable doubt, we don’t know whether the jury found

41 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 42 of 44

Grow guilty of conspiracy to commit healthcare fraud, conspiracy to commit wire

fraud, or both.

We faced a similar issue in United States v. Allen, 302 F.3d 1260 (11th Cir.

2002). There, the defendants were charged with a conspiracy to distribute cocaine

and marijuana, the jury returned a general verdict of guilt on that count, and the

statutory maximum sentence for each substance differed. Id. at 1267–78. We found

persuasive the Fourth and Sixth Circuits’ holdings that, “in the absence of a special

verdict,” a district court may not sentence a defendant “beyond the maximum

sentence for the least serious” substance charged in a multi-object drug conspiracy.

See id. at 1270, 1275 (citing United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999)

and United States v. Dale, 178 F.3d 429 (6th Cir. 1999)). We rejected the

government’s argument that because the jury was told it had to find that the

defendants conspired to distribute both substances there was no sentencing error.

See id. at 1270–75. We explained that “[a]t no time was the jury [so] advised, either

in the court’s instructions or in the Government’s argument to the jury.” Id. at 1275.

Because the defendants had been sentenced above the statutory maximum for

marijuana (the lower of the two), we vacated their sentences for the conspiracy

count. Id. at 1268, 1275. We remanded to the district court with instructions that

the government “be granted the opportunity, in a timely fashion, to consent to a re-

sentencing” on the conspiracy count based on the statutory maximum for marijuana

42 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 43 of 44

“or to elect to proceed against one or more of the Defendants with a new trial on [the

conspiracy count] with a special verdict.” Id. at 1275.

The same outcome is required here. The jury was never told it had to find

both objects of the conspiracy charged in count one. In fact, it was told the opposite:

“The Government does not have to prove that a Defendant willfully conspired to

commit all the crimes charged in each conspiracy. It is sufficient if the Government

proves beyond a reasonable doubt that a Defendant willfully conspired to commit

one of the objects previously discussed and crimes alleged in each conspiracy.” Like

Allen, we vacate Grow’s sentence for count one. See id. (““[W]e find that the Dale-

Rhynes violation requires that the sentences of the six defendants as to Count 1 be

vacated.”); see also Rhynes, 196 F.3d at 239–40, 243 (“For the reasons stated, we

affirm appellants’ convictions and sentences, except that we withhold judgment on

the convictions of W. Rhynes, A. Adams, and T. Adams on Count I.”). On remand,

the district court must permit the government to either consent to resentencing based

on a maximum sentence of ten years on count one or elect to retry Grow on count

one with a special verdict. The government must make its decision within

thirty days of the issuance of the mandate. See Allen, 302 F.3d at 1280.

CONCLUSION

The evidence was sufficient to support Grow’s convictions, the district court’s

charge was not coercive or prejudicial, and Grow invited any error in the district

43 USCA11 Case: 18-11809 Date Filed: 10/21/2020 Page: 44 of 44

court’s failure to instruct on the elements of wire fraud. We therefore affirm Grow’s

convictions. However, because the district court’s sentence for count one exceeded

the statutory maximum allowed by the jury’s general verdict, we vacate Grow’s

twenty-year sentence for count one and remand for proceedings consistent with this

opinion.

CONVICTION AFFIRMED, SENTENCE FOR COUNT ONE

VACATED, and REMANDED with instructions.