United States v. Ivan Andre Scott

USCA11 Case: 21-11467 Document: 60-1 Date Filed: 01/20/2023 Page: 1 of 20 [PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-11467 ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus IVAN ANDRE SCOTT, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:19-cr-00209-PGB-LRH-1 ____________________ USCA11 Case: 21-11467 Document: 60-1 Date Filed: 01/20/2023 Page: 2 of 20 2 Opinion of the Court 21-11467 Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges. JORDAN, Circuit Judge: After a five-day trial, a jury convicted Ivan Andre Scott of healthcare fraud in violation of 18 U.S.C. § 1347, conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 1349, paying kickbacks in connection with a federal healthcare program in vio- lation of 42 U.S.C. § 1320a-7b(b)(1)(A), and conspiracy to pay and receive healthcare kickbacks in violation of 18 U.S.C. § 371. The district court sentenced him to 120 months in prison. The charges arose out of Mr. Scott’s involvement in the sub- mission of claims to Medicare for genetic cancer-screening (CGx) tests for beneficiaries who did not have cancer or a familial history of cancer and that were not ordered by the beneficiaries’ primary care physicians. The government asserted that such tests—which do not diagnose cancer but only assess the risks of developing the disease—were not covered by Medicare, and that Mr. Scott knew as much but nevertheless engaged in a fraudulent scheme to sub- mit claims for the tests to Medicare. On appeal, Mr. Scott challenges his healthcare fraud convic- tions—but not his kickback convictions—on a number of grounds. First, he contends that the indictment failed to state the charged USCA11 Case: 21-11467 Document: 60-1 Date Filed: 01/20/2023 Page: 3 of 20 21-11467 Opinion of the Court 3 healthcare fraud offenses. Second, he argues that the evidence at trial was insufficient to prove his guilt on those offenses. 1 Following oral argument and a review of the record, we af- firm. I Mr. Scott argues that because Medicare covers CGx tests, he did not commit any crimes. See Appellant’s Br. at 27–35. At times, he seems to couch the argument in sufficiency terms, but he did not present any evidence or arguments on the coverage issue at trial. Nor did he request that the jury be instructed that Medicare generally pays for CGx tests. The jury therefore could not have concluded that Medicare covered the CGx tests in question. In an abundance of caution, we construe this particular ar- gument by Mr. Scott as a belated challenge to the indictment, ra- ther than as claim of insufficient evidence on the healthcare fraud charges. We do so in part because, as the district court observed, see D.E. 136 at 2, that is the precise argument Mr. Scott made in his post-trial motion. See D.E. 122 at 11 (“The indictment overlooks the federal statutory coverage for USPSTF-recommended screen- ing tests as personalized prevention plan services under the Afford- able Care Act[,] 42 U.S.C. …

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