Eleventh Circuit Court of Appeals - Published Opinions

Thursday, June 28, 2018

Henderson: Upholding False-Statement Convictions by VA Employee

In United States v. Henderson, No. 16-16984 (June 27, 2018) (Ripple, Rosenbaum, Jill Pryor), the Court upheld the convictions and sentence for making false statements by a VA employee in connection with the delivery and payment of healthcare services.

First, and reviewing for plain error, the Court rejected the defendant's argument that the government failed to prove that the false statements were "material."  The Court found that the statements, even if ambiguous, had a natural tendency of influencing the decision-making body, because they could have misled a medical professional about whether the health care services had actually be rendered by the VA contractor.  Second, the Court concluded that the government sufficiently established the defendant's statements were made knowingly and willfully because, despite claiming to be informed that the patients had actually received medical services, the government presented evidence at trial to refute that claim.  Similarly, the government presented sufficient evidence to refute his claim that he lacked the requisite mens rea by closing consults only from earlier fiscal years.

Second, the Court upheld the defendant's conviction for making false statements to federal investigators during an interview.  The Court found the evidence sufficient with regard to his mens rea because the statement he made to investigators was inconsistent with other evidence.  And the Court found the evidence sufficient with regard to the materiality of his statement because, regardless of whether the agents already knew the truth or were actually misled, it had the tendency of influencing the government's investigation.

Third, and finally, the Court upheld the application of the enhancement in USSG 2B1.1(b)(15)(A) for the "conscious or reckless risk of death or serious bodily injury."  The government presented evidence showing that the false statements could have delayed and influenced patient care, and the government did not need to show actual evidence of death or serious bodily injury.  Moreover, the fact that the defendant initially refused to participate in the project, coupled with his eventual acquiescence, demonstrated his awareness of the risks posed by his conduct.  Moreover, one of the defendant's arguments was made in a Rule 35 proceeding after the notice of appeal had been filed, and the Court lacked jurisdiction to consider it because he did not amend his notice of appeal.  Finally, it was irrelevant that the probation officer disagreed with applying the enhancement.