In United States v. Grow, No. 18-11809 (Oct. 21, 2020) (Luck, Ed Carnes, Marcus) (per curiam), the Court affirmed the defendant’s convictions but vacated his sentence.
First, the Court that the evidence was sufficient to support convictions for conspiracy to commit healthcare and wire fraud, substantive healthcare fraud, paying and receiving illegal kickbacks, and money laundering.
Second, the Court rejected that the defendant’s argument that a district court’s jury instruction was coercive. On Friday, the court told the jury that it had another trial starting on Monday, and that the jury could reach a partial verdict. However, the court told the jury that there was no time limit on its deliberations, and the jury did in fact continue deliberating into Monday and ultimately did not return a partial verdict.
Third, the Court found that the defendant invited any error with regard to the district court’s failure to instruct the jury on wire fraud, one of the objects of the conspiracy. The defendant not only agreed with the court’s proposed instructions, but his own proposed instructions omitted any instruction on wire fraud.
Finally, the Court vacated the 20-year sentence for the conspiracy count. Although that sentence was below the statutory maximum for the wire fraud object, it exceeded the ten-year statutory maximum for the healthcare fraud object. And because the jury returned a general verdict, and was instructed it could find the defendant guilty if it found him guilty on either or both of the objects of the conspiracy, the Court could not discern the object(s) for which the jury found him guilty. Following circuit precedent, the Court vacated the sentence and remanded for the government to either consent to a sentence based on the ten-year maximum or retry the defendant with a special verdict.
