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United Statesv.Howard

CourtUnited States Court of Appeals for the Eleventh Circuit
Docket No.18-11602, 18-12395
DecidedMarch 7, 2022
Reporter28 F.4th 180
JudgesBefore Branch, Luck, and Ed Carnes, Circuit Judges
Tags
CriminalCriminal LawEvidenceSentencingSufficiency of the EvidenceVacaturRemand
Case Summary

Pharmacist Larry Howard, physician Nicole Bramwell, and retired Navy veteran Raymond Stone joined a scheme that steered Tricare beneficiaries to Howard’s pharmacy for highly reimbursed compounded creams. Bramwell wrote 394 prescriptions over 14 months, Howard paid her as pharmacy reimbursements rose, and Stone recruited patients and received payments and sales commissions tied to the prescriptions. A jury convicted all three of conspiring to pay or receive healthcare kickbacks; Howard was also convicted of paying kickbacks to Bramwell and Stone and of two money-laundering counts, while Bramwell and Stone were convicted of receiving kickbacks. The Eleventh Circuit held the evidence sufficient: Howard’s payments to Bramwell tracked Tricare revenue, the evidence showed Howard paid Stone for recruiting patients, and the resulting kickback proceeds supported Howard’s money-laundering convictions. The court explained that the government did not have to prove the creams were medically unnecessary because the charged kickback offenses required proof of payments to induce referrals for services paid by a federal healthcare program; proof of the kickback object also sustained the multi-object conspiracy convictions. It rejected Howard’s constructive-amendment challenge because trial evidence about two checks did not broaden the indictment’s charged basis for conviction. The court dismissed Stone’s sentencing challenge as moot because he had completed the portions of his sentence affected by the requested reduction. On the government’s cross-appeal, the court held Bramwell’s probation-only sentence substantively unreasonable given her central role and the scheme’s scale and seriousness; it vacated that sentence and remanded, requiring a non-token period of incarceration without setting a particular term, and otherwise affirmed the judgments.

Opinion

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