In United States v. Akwuba, No. 19-12230 (Aug. 11, 2021) (Wilson, Rosenbaum, Ed Carnes), the Court affirmed, with one exception, the defendant’s convictions for distributing controlled substances and health care fraud as part of a pill mill operation.
First, with one exception, the evidence was sufficient to support her convictions for distribution of controlled substances, conspiracy to distribute controlled substances and to commit health care fraud, and substantive health care fraud. With regard to one count of substantive health care fraud, the government conceded, and the Court agreed, that the evidence was insufficient because an insurance company not named in the indictment was billed for the prescriptions for that count.
Second, the Court rejected the defendant’s argument that a jury instruction on a disputed factual question effectively directed a partial verdict of guilty. The instruction did not relate to an element of the offense or any factual question that the jury was required to decide. And although a closer question, the instruction also did not violate the right to present a defense because, while the judge erroneously told the jury that the parties had stipulated to something they did not, it did not prevent the defendant from presenting her theory of defense to the jury.
Finally, there was no reversible error on three evidentiary rulings. First, the district court did not reversibly err by preventing the defendant from eliciting testimony that a prescription pad had been stolen, as defense counsel ultimately withdrew that line of questioning. Second, the district court did not err by limiting a line of cross examination on the government’s expert witness because it did not pertain to the defendant, and there was nothing more to impeach the expert with. Third, experts did not expressly state opinions regarding the defendant’s mental state, and the likely-irrelevant admission of some testimony about the experts’ personal practices did not rise to the level of plain error.
