United States v. John Gladden
Citation78 F.4th 1232
Date Filed2023-08-17
Docket21-11621
Cited16 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11621
____________________
UNITED STATES OF AMERICA,
PlaintiďŹ-Appellee,
versus
JOHN GLADDEN,
JESSICA LINTON,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 6:19-cr-00219-LSC-SGC-7
____________________
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21-11621 Opinion of the Court 2
Before WILSON, JILL PRYOR, Circuit Judges, and COVINGTON,â
District Judge.
COVINGTON, District Judge:
Jessica Linton and John Gladden were convicted of
conspiracy to commit health care fraud and mail fraud, and the
substantive offenses of health care fraud, mail fraud, and
aggravated identity theft, for their roles in a multi-year scheme to
defraud insurance companies. Linton, Gladden, and several others
at Global Compounding Pharmacy received inflated
reimbursement payments by billing for medically unnecessary and
fraudulent prescriptions. Linton and Gladden now appeal their
convictions. In addition, Gladden appeals the district courtâs
restitution and forfeiture orders. For the following reasons, we
affirm as to Linton and affirm in part, vacate in part, and remand as
to Gladden.
I
Global Compounding Pharmacy began operations in 2014.
In its ďŹrst two years of existence, Global billed approximately $193
million to pharmacy beneďŹt managers (PBMs) and received over
$49 million in reimbursement payments from PBMs and insurance
companies.
As it turns out, Globalâs success was attributable to a
company-wide scheme to defraud pharmacy networks by secretly
â Honorable Virginia M. Covington, United States District Judge for the
Middle District of Florida, sitting by designation.
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21-11621 Opinion of the Court 3
billing PBMs for medically unnecessary and fraudulent
prescriptions.
When it began operations, Global focused on ďŹlling
prescriptions for compounded drugs, which are supposed to be
personalized medications for patients with individual needs. The
reimbursement rates for these drugs are very high: Global could be
reimbursed as much as $20,000 for a single tube of a compounded
cream. Global employees thus saw an opportunity to generate
signiďŹcant revenue by dispensing more compounded drugs.
Whether the patients actually had a medical need for these drugs
was of little concern.
The underlying conspiracy at Global, which is not in
dispute, relied on the following methods: adding non-prescribed
items to prescription forms; incentivizing or paying prescribers to
write medically unnecessary prescriptions; directing employees to
obtain high-reimbursement, medically unnecessary prescriptions;
billing for unauthorized or forged prescriptions; altering
prescriptions to increase revenue; automatically reďŹlling
medications; inďŹating the average wholesale price of ingredients
for compounded drugs; hiring sales representatives who were close
to prescribers; adding or removing ingredients from compounded
drugs to increase proďŹts; reducing co-pays to induce beneďŹciaries
to obtain medically unnecessary prescriptions; and providing false
information to PBMs during audits.
A PBM is a company that acts as an intermediary between
pharmacies and insurance companies. Typically, an insurance
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21-11621 Opinion of the Court 4
company beneďŹciary visits his or her doctor, the doctor prescribes
the beneďŹciary a prescription drug, and then the beneďŹciary visits
a pharmacy to ďŹll the prescription. Once the patient brings the
prescription to a pharmacy, the pharmacy inputs the information
into the pharmacy processing system, which communicates with
the PBM. The PBM checks whether the drug is covered and
determines the beneďŹciaryâs co-pay. The PBM shares this
information with the pharmacy, so that the pharmacy can collect
the co-pay and dispense the drug.
A. Jessica Lintonâs Role
As the manager of the billing department at the Clearwater
Call Center, Jessica Linton played an integral role in the scheme at
Global.
First, Linton and other billers at the Clearwater Call Center
would run âdummy claimsâ to identify products covered by
insurance. The billing department would submit test claims for
prescriptions to an insurance company to see whether the
company would reimburse the product, and then claw back the
claim. Linton would proceed to solicit Global employees to obtain
prescriptions for the most lucrative products.
Second, Linton used Globalâs preprinted prescription forms
to add and change prescriptions without the approval of the
prescribing doctors. For example, on January 6, 2015, Global sales
representative Joshlyn Bowen emailed Linton about a prescription
for her husband, Robert Cody Bowen. Dr. John Almirol, who
treated Robert Bowen as a patient, issued the prescription. In
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21-11621 Opinion of the Court 5
response to Joshlyn Bowenâs email, Linton stated that she received
the prescription, and confirmed, â[j]ust pain and migraine cream is
all he needs?â Joshlyn Bowen then asked Linton to add additional
medication to the prescriptionsâwithout consulting Dr. Almirol.
Linton did just that.
Third, Linton directed employees to obtain prescriptions for
products that the patients would notâor should notâuse. For
example, Jamey Mays, Globalâs lead pharmacist, testified that he
and Linton emailed about a scar patch for which he had received a
prescription. In an email to Linton regarding whether to reverse
the prescription, Mays wrote âyou can leave it. It is working really
well,â followed by a winking smiley face. In fact, Mays had never
received the product. Nor could he have, because as Linton was
well aware, the product had been discontinued.
This was not the only time Linton authorized the filling of
prescriptions for products that would never be used. In June 2015,
Linton sent a text message to Angie Nelson, a Global district
manager, about a skin treatment medication called SilaPak that had
been prescribed to Nelsonâs child. Lintonâs text message read âhey
girl, Jamey [Mays] is not comfortable with [patients] under 6 using
SilaPak. He said heâd let [Nelsonâs daughterâs] order ship as long as
you donât actually use it on her.â
As mentioned before, automatic refills were part of Globalâs
scheme. But eventually, some patients began to take issue with the
surplus of products they were receiving through automatic refills.
Linton had a solution: reroute the medications of dissatisfied
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21-11621 Opinion of the Court 6
customers to the address of Jeremy Adams, Globalâs owner. That
way, Global could continue to bill insurance for the refilled
prescriptions that were no longer wanted by the actual patients.
Donald Edenfield, the former husband of Lori Dawn
Edenfield, a nurse practitioner relied upon by Global, testified that
he had received several refills of compounded creams from Global,
even though he did not need them, had not requested the refills,
and did not submit co-pays for the refills. Donald Edenfield
contacted Lori Dawn Edenfield to request that Global stop sending
him the creams. This seemed to work: Donald Edenfield no longer
received the creams at his address. However, Global subsequently
issued a prescription in Donald Edenfieldâs name for the
compounded creams, but with the shipping address on the
prescription labels listed as Jeremy Adamsâ address. Of course,
Donald Edenfield did not live with Jeremy Adams.
The same practice was applied to Donald Edenfieldâs
mother, Doris Edenfield. The edit log for Doris Edenfieldâs patient
file reflected that her address on file had been changed to that of
Jeremy Adams and that prescriptions in her name had been shipped
to that address.
Derrick Wester, who was also formerly married to Lori
Dawn Edenfield, testified that he too received unwanted refills of
medication. Wester called Global to ask that it stop sending him
refills. Global complied, but it continued to issue prescriptions in
Westerâs name, sending the refills to Adamsâs address.
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The governmentâs evidence reflects that Linton changed the
addresses on file for the Edenfields and Wester, permitting Global
to continue billing insurance for prescriptions that the Edenfields
and Wester neither wanted nor knew about.
B. John Gladdenâs Role
John Gladden was not employed at Global for long before
he began to notice certain oddities. Shortly after he joined Global
in 2015 as the district manager for Georgia, Gladden saw âsome red
flags.â Those red flags involved his subordinatesâ obtaining a
significant number of prescriptions for themselves. Specifically,
after viewing a subordinateâs commission report in February 2015,
Gladden sent a series of emails to his supervisor, Phillip Marks. In
one email, Gladden wrote âAMAZING . . . of the 27 scripts, only 2
are for [] real patients . . . the other 25 appear to be for [the
employee].â He then sent another email: âIâm sorry, I had to go
back and take a third look in disbelief at his report . . . it was three
actual patients not two . . . clearly still an amazing feet [sic]! lol[.]â
Gladden did not resign in response to these red flags. Nor
did he report the false prescriptions to his superiors. Instead, he
decided that he wanted in on the action. So, Gladden directed his
sales representatives to obtain prescriptions for themselves for
products with high reimbursement rates, like SilaPak. On July 9,
2015, Gladden sent his sales team an email with the subject line
âGet your personal scripts,â proclaiming that âeveryone should
have a personal script for yourself, spouse, and family members.â
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21-11621 Opinion of the Court 8
As it turns out, Gladden was not deeply concerned with the
health and wellbeing of his employees and their family members.
One of Gladdenâs sales representatives, Dawn Whitten, responded
to Gladdenâs email, stating that she did not âwant to draw a red flag
to the MD or to me and my family.â She noted that none of her
family members âhave any documentation in our medical chart
that would require a Rx for pain.â This was not an issue for
Gladden: he responded to Whitten, writing that she should â[a]t
least get the SilaPak . . . I would just have ur buddy wright [sic] it
for you[.]â The âbuddyâ was Dr. Steven Leichter, an
endocrinologist. Gladden had visited Dr. Leichterâs office with
Whitten before, so he knew that Dr. Leichter was a diabetes
specialist with no reason to prescribe dermatology products.
Whitten ultimately obtained prescriptions for herself and
her family members, including her twelve-year-old daughter. Dr.
Leichter was listed as the prescribing physician for those
prescriptions; however, Whitten testified that Dr. Leichter did not
authorize the prescriptions.
Megan Rumble, another sales representative who worked
for Gladden, also obtained medically unnecessary prescriptions at
his direction. Rumble testified that she did not have any âmedical
needâ for the prescriptions she obtained, but she got them âbecause
[she] was instructed to.â
C. District Court Proceedings
A grand jury sitting in the Northern District of Alabama
returned a 103-count indictment charging Linton, Gladden, and
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21-11621 Opinion of the Court 9
eight co-defendants for their roles in this scheme. Linton was
charged with conspiracy to commit health care fraud and mail
fraud, in violation of 18 U.S.C. § 1349 (Count 1), thirteen counts of
health care fraud, in violation of 18 U.S.C. § 1347 (Counts 10â11,
16â19, 23â25, 30â33), three counts of mail fraud, in violation of 18
U.S.C. § 1341 (Counts 60, 64â65), and seven counts of aggravated
identity theft, in violation of 18 U.S.C. § 1028A (Counts 70â75, 79).
Gladden was charged with conspiracy to commit health care
fraud and mail fraud (Count 1), six counts of health care fraud
(Counts 34â39), one count of mail fraud (Count 66), and one count
of aggravated identity theft (Count 84).
Following a six-day jury trial, Gladden and Linton were
convicted on all counts. Linton was sentenced to 132 monthsâ
imprisonment, followed by three years of supervised release.
Gladden was sentenced to 64 monthsâ imprisonment, followed by
one year of supervised release. Linton was ordered to pay
restitution in the amount of $39,370,481.41 and forfeiture in the
amount of $335,775.93. Gladden was ordered to pay restitution in
the amount of $134,772.86 and forfeiture in the amount of
$157,587.33.
Specifically, the presentence investigation report (PSR) for
Gladden reported the amount of loss attributable to Gladden for
his role in the scheme as between $1,500,000 and $3,500,000. To
calculate the Guidelines range, the probation officer grouped
together the conspiracy and fraud claims, resulting in a base offense
level of seven. The probation officer applied a two-level
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enhancement for Gladdenâs role as a manager in the scheme, and
another two-level obstruction of justice enhancement. After an
additional sixteen-level enhancement to account for Gladdenâs
attributable loss ranging from $1,500,000 to $3,500,000, Gladdenâs
total offense level was 27.
The PSR indicated that restitution would be ordered at
sentencing, but that the court could apportion restitution
payments based on the victimsâ losses and Gladdenâs economic
circumstances. The PSR also noted that the government intended
to seek an order of forfeiture against Gladden.
Gladden objected to the PSR. He contended that the
government failed to provide sufficient documentation or evidence
for the loss amount. According to Gladden, the attributable loss
amount should not exceed $31,104.
Before sentencing, the government moved for a final order
of forfeiture for $167,587.33 against Gladden, which was the
amount of his salary during his time at Global. The government
sought forfeiture only as to property derived from gross proceeds
traceable to the commission of the health care fraud conspiracy
charged in count one of the indictment. The government argued
that Gladdenâs salary constituted the proceeds from his role in the
fraud conspiracy. According to the government, fraud permeated
so many aspects of Globalâs operations that Global would not have
operated in the way that it did or paid Gladden his salary but for
the fraudulent conduct.
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In response, Gladden argued that the proposed forfeiture
order was overly punitive because he was found responsible for
only six fraudulent prescriptions at a total cost of $31,104.
According to Gladden, the forfeiture amount should be $210.21,
which was the total compensation he received for those six
fraudulent prescriptions. Gladden also asserted that it was
improper to attribute all of his income to his offenses because he
was not involved in the overall conspiracy beyond forwarding
emails.
At sentencing, the government called investigator Katherine
Gerhardt to explain the total loss and restitution calculations.
Gerhardt calculated that the entire fraudulent scheme at Global
generated $2,118,271.54 in insurance payments, which Gerhardt
considered the loss amount. To calculate the loss amount,
Gerhardt first isolated the prescriptions for which no co-pay had
been collected. Next, for each of those prescriptions, Gerhardt
subtracted the co-pay amount from the retail price, the sum of
which reflected the amount that insurance paid to Global. To
calculate the loss amount attributable to Gladden, Gerhardt
applied this methodology to the commission reports of Gladdenâs
subordinates. Based on Gerhardtâs methodology, the government
proposed $134,772.86 in restitution, which represented the amount
insurance paid Global for the fraudulent prescriptions that two of
Gladdenâs subordinates, Whitten and Rumble, obtained for
themselves and their family members.
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Gladden contended that the restitution calculation should
exclude prescriptions that were medically necessary, which, in his
view, could be established if a patient ultimately used the
prescribed drugs for a medical purpose. According to Gladden,
because Whitten and her family used the drugs they received, they
should be omitted from the restitution amount. The district court
rejected Gladdenâs argument, disagreeing with the premise that an
overprescribed product was medically necessary simply because
some of it was used. The district court also found unavailing
Gladdenâs argument that the restitution amount should not
include refills, reasoning that Gladden knew his subordinates were
ordering the refills.
As for Gladdenâs forfeiture order, the district court accepted
the governmentâs argument that Gladdenâs full salary should be the
forfeiture amount because his salary constituted the gross proceeds
traceable to the commission of the health care fraud conspiracy
charged in count one of the indictment.
On appeal, Linton challenges only her convictions. Gladden
challenges his convictions, as well as the restitution order and
forfeiture judgment against him.
II
When analyzing the sufficiency of the evidence, this Courtâs
review is de novo, âviewing the evidence in the light most favorable
to the government, with all reasonable inferences and credibility
choices made in the governmentâs favor.â United States v. Sosa, 777
F.3d 1279, 1289 (11th Cir. 2015) (quotations omitted). We âwill not
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overturn a conviction on the grounds of insufficient evidence
unless no rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.â United States v.
Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (internal quotations
omitted).
This Court reviews the legal bases for a restitution order de
novo and factual findings concerning a restitution order for clear
error. United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007).
Likewise, â[i]n reviewing forfeiture orders, we review findings of
fact for clear error and legal conclusions de novo.â United States v.
Goldstein, 989 F.3d 1178, 1202 (11th Cir. 2021). The Court will find
clear error if, âafter reviewing all the evidence, [it is] left with the
definite and firm conviction that a mistake has been committed.â
United States v. Alicea, 875 F.3d 606, 608 (11th Cir. 2017) (per
curiam) (internal quotations omitted).
III
A. Jessica Lintonâs Convictions
Linton argues that, as to all her convictions, the government
failed to present sufficient evidence to demonstrate that she
possessed the requisite mens rea. We disagree.
Beginning with Lintonâs conspiracy conviction, the jury
reasonably found that Linton knowingly and voluntarily joined the
conspiracy at Global based on her conversations with Jamey Mays
and Angie Nelson about prescriptions for medically unnecessary
products. See United States v. Moran, 778 F.3d 942, 960 (11th Cir.
2015) (stating that to establish conspiracy under 18 U.S.C. § 1349,
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21-11621 Opinion of the Court 14
âthe government must prove that (1) a conspiracy existed; (2) the
defendant knew of it; and (3) the defendant knowingly and
voluntarily joined it.â). While Linton contends she was unaware of
the conspiracy at Global, her argument is belied by the evidence
reflecting her willingness to bill for prescriptions that were never
filled or intended to be used. See id. (noting that the government
may prove the elements of conspiracy by circumstantial evidence).
Indeed, Mays told Linton not to reverse a prescription for a
discontinued product, even going so far as to joke about how it was
working really wellâpunctuated by a winking smiley face. Linton
also told Nelson that Mays would permit her to fill a prescription
for Nelsonâs minor daughter, on the express condition that
Nelsonâs daughter not use the product.
Lintonâs efforts to conceal aspects of the conspiracy further
support her conviction. See United States v. Reeves, 742 F.3d 487, 500
(11th Cir. 2014) (â[E]fforts to conceal a conspiracy may support the
inference that a defendant knew of the conspiracy and joined it
while it was in operation.â). On at least one occasion, Linton
disciplined an employee who provided truthful information to a
pharmacist about Globalâs billing practices. Specifically, Fermin
Alfonsoâa biller who reported to Linton at the Clearwater Call
Centerâtestified that he told Global pharmacist Judith Reynolds
that several sales representatives were automatically adding certain
ingredients to prescriptions in order to receive higher
reimbursements. Linton subsequently issued a written warning to
Alfonso for â[p]utting in writing a false statement that could result
in legal action[.]â In reality, however, Linton displayed little
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concern with the substance of Alfonsoâs allegations. Linton told
Alfonso ânot to worry aboutâ the reprimand and ânot to take it too
seriously.â Nor did Linton find it necessary to instruct Alfonso to
change anything about his billing practices. The written warning,
juxtaposed with Lintonâs verbal indication not to worry about it,
supports an inference that the warning was an effort to obscure the
nature of the billing practices that Linton condoned.
Linton also instructed her subordinates in an August 12,
2015, email to avoid putting notes in patientsâ prescription
management systems that would reveal that the patient âis paying
a certain amount less than what their copay is.â Such a discrepancy,
as it turns out, could raise red flags in an audit. The jury could thus
reasonably infer from Lintonâs email that she participated in the
practice of reducing co-pays and took steps to conceal it.
As to Lintonâs substantive fraud convictions, she contends
that she lacked the specific intent to defraud necessary to support
the convictions for health care and mail fraud. We disagree.
Lintonâs conversations with Mays and Nelson are more than
sufficient to demonstrate her knowledge that Mays and Nelson
were submitting false claims. See United States v. Medina, 485 F.3d
1291, 1297 (11th Cir. 2007) (stating that to sustain a conviction for
health care fraud, the government must prove that the defendant
knew that the claims submitted to the health care benefit program
were false); United States v. Wheeler, 16 F.4th 805, 819 (11th Cir.
2021) (per curiam) (âTo prove that a defendant had the intent to
defraud, the [g]overnment has to prove that the defendants either
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knew they were making false representations or acted with
âreckless indifference to the truth.ââ). Indeed, it is difficult to
conceive that Linton was unaware of the falsity of the prescriptions
in light of her knowledge that Mays was issuing prescriptions with
an explicit directive that the patient not use the product.
Linton nevertheless contends that she did not intend to
defraud because she lacked experience in the compounding
industry. This argument is unpersuasive. Lintonâs conversations
with Mays and Nelson would give pause to even a novice in the
industry. Furthermore, Linton was made aware of the fraudulent
practices at Global at various points throughout the scheme.
Specifically, Judith Reynolds testified that she expressed her
concerns about certain practices at Global at a meeting where
Linton was present. Those practices involved unpaid co-pays and
the receipt of duplicate therapies by patientsâincluding sales
representatives. Reynolds also highlighted that patients were
receiving significantly more of a product than necessary and that
Global employees were underbilling certain insurance companies
to avoid reaching a cap.
Likewise, Stapp Harrison, another pharmacist at Global,
testified that he took issue with some of the practices at the
Clearwater Billing Center. Harrison testified that he noticed issues
such as erroneous billing, which he relayed to Jamey Mays.
Specifically, in a June 22, 2015, email to Mays, Harrison stated âI
would like to reiterate that the billing center appears to be billing
erroneously,â noting that âwe should not bill for something and
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when not covered mark through it, and choose a different drug.â
Harrison then wrote âJamey its [sic.] time for this to stop. I want
better business practices.â Thereafter, Mays forwarded the email
to Jeremy Adams and Linton.
Despite learning of fraudulent conduct at Global, Linton
made no effort to change any of her practices. Lintonâs inaction
undermines her argument that lack of experience was to blame for
her improper conduct. For all of these reasons, the evidence
presented at trial is more than sufficient to sustain Lintonâs
convictions for conspiracy, health care fraud, and mail fraud.
As for Lintonâs substantive aggravated identity theft
convictions, Linton contends that the Supreme Courtâs recent
decision in Dubin v. United States, 143 S.Ct. 1557 (2023), requires
vacatur. We disagree.
In Dubin, the Supreme Court held that the words âuseâ and
âin relation toâ in 18 U.S.C. § 1028A should not be read so broadly
that the statute would âapply automatically any time a name or
other means of identification happens to be part of the payment or
billing method used in the commission of a long list of predicate
offenses.â Id. at 1564â65. Instead, the Court explained that a
âdefendant âusesâ another personâs means of identification âin
relation toâ a predicate offense when this use is at the crux of what
makes the conduct criminal.â Id. at 1573. Section 1028Aâs reach is
thus limited to situations where âa genuine nexusâ exists between
the use of a means of identification and the predicate offense. Id. at
1565.
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The Court clarified, however, that the statute still proscribes
âuse[s] [of a means of identification] involving fraud or deceit about
identity[.]â Id. at 1570. Dubin thus redirects the statuteâs focus to
âoffenses built around what the defendant does with the means of
identification in particular.â Id. at 1568. âIn other words, the means
of identification specifically [must be] a key mover in the
criminality.â Id.
Again, Linton contends that, pursuant to Dubin, her
aggravated identity theft convictions should be vacated. According
to Linton, the jury instructions presented at trial were erroneous,
and further, Section 1028A is an unconstitutionally vague statute.
As an initial matter, we review Lintonâs Dubin-related
arguments under a plain-error standard. Linton did not object to
the indictment or the jury instructions on the basis of the elements
of the statute at issue in Dubin. âThe plain-error standard applies
even if, as is the case here, there were no legal grounds for
challenging the instructions at the time they were given, but such
legal grounds have since arisen due to a new rule of law arising
between the time of conviction and the time of appeal.â United
States v. Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011); see United States
v. Reed, 941 F.3d 1018, 1020 (11th Cir. 2019) (reviewing a conviction
for plain error where an intervening change in law altered the
elements the government was required to prove under the charged
statute). Plain error exists only if the defendant âdemonstrates that
(1) there is an âerrorâ; (2) the error is âclear or obvious, rather than
subject to reasonable disputeâ; (3) the error âaffected the
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[defendantâs] substantial rights, which in the ordinary case meansâ
it âaffected the outcome of the district court proceedingsâ; and (4)
âthe error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.ââ United States v. Marcus, 560
U.S. 258, 262 (2010) (citations omitted).
Linton cannot establish plain error because, even if the first
two requirements are met, she has not established âa reasonable
probability that the error affected the outcome of the trial.â Id.
Even under the circumscribed reading of Section 1048A set forth in
Dubin, Lintonâs conduct falls within the statuteâs purview. Linton
deliberately changed the addresses on file for Donald Edenfield,
Doris Edenfield, and Derrick Wester to that of Jeremy Adams so
that Global could continue billing for the products. In other words,
Linton represented to the PBMs and insurance companies that
Global was filling prescriptions for the Edenfields and Wester
when, in reality, the products were being sent to Adams.
Lintonâs forgery of the Edenfieldsâ and Westerâs identities is
at the heart of the deception: Linton used the identities of the
Edenfields and Wester to continue refilling prescriptions in their
names, even though they were neither aware of nor received any
products. Because the deception centered on the identity of the
individual receiving the product, Linton committed identity theft.
See Dubin, 143 S.Ct. at 1568 (âThis central role played by the means
of identification, which serves to designate a specific personâs
identity, explains why we say that the âidentityâ itself has been
stolen.â). The use of the fraudulent identities was central to the
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scheme at Global; Lintonâs fraudulent representation that
individuals such as the Edenfields and Wester were the recipients
of the prescriptions issued in their names directly enabled Global
to continue billing for medically unnecessary prescriptions.
Further, as to Robert Bowen, Linton obtained a prescription
for additional medications on his behalf through the fraudulent use
of Dr. John Almirolâs means of identification. Dr. Almirol had
signed and authorized a prescription for Robert Bowen. After
emailing with Joshlyn Bowen, Linton fraudulently altered the
already-signed prescription to permit Global to bill for additional
medically unnecessary drugs without Dr. Almirolâs knowledge. In
other words, Linton affirmatively represented to the insurance
companies and PBMs that Dr. Almirol had authorized the
additional prescriptions when, in fact, he had not.
Lintonâs use of Dr. Almirolâs means of identification is
distinct from the conduct at issue in Dubin, where the defendant
misrepresented only the qualifications of the professional who
performed psychological testing on a patient to increase the
reimbursement from Medicaid. Dubin, 143 S. Ct. at 1563â64.
Lintonâs use of Dr. Almirolâs identity was central to the deception:
she used his âmeans of identification itself to defraud or deceive.â
Id. at 1568. The insurance companies and PBMs would not have
provided reimbursement had they known that Dr. Almirol had not
actually authorized the prescriptions. That Dr. Almirol had
originally authorized at least one prescription for Robert Bowen is
of no moment. See id. at 1568 n.6 (noting that the act of stealing an
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identity can âinclude situations where [it] was initially lawfully
acquiredâ). By explicitly using Dr. Almirolâs identity to falsely
represent to insurance and PBMs that the prescriptions were
authorized, Linton appropriated Dr. Almirolâs personal
information to deceive others. See id. at 1570 (âAs the definitions
reveal, identity theft covers both when âsomeone steals personal
information about and belonging to another . . . and uses the
information to deceive others[.]ââ (quoting Blackâs Law Dictionary
894 (11th ed. 2019)). Thus, because Dr. Almirolâs signature on the
prescription form directly enabled Linton to bill for the medically
unnecessary products, âthe means of identification specifically
[was] a key mover in the criminality.â Id. at 1568.
In short, unlike in Dubin, Linton did not provide a service to
a client while merely misrepresenting how the service was
performed to inflate the bill. Rather, Linton used the means of
identification of former patients and prescribing doctors to overbill
for certain products. Lintonâs conduct thus falls squarely within the
classic variety of identity theft left untouched by Dubin. Her use of
the Edenfieldsâ and Westerâs identifying information was itself
fraudulent or deceptive because Linton represented those patients
were receiving the refills, despite shipping the product to Jeremy
Adams. And her use of Dr. Almirolâs means of identification was
fraudulent because she falsely represented he had authorized the
additional prescriptions for Robert Bowen.
Lintonâs mens rea argument similarly fails. Linton contends
that because Section 1028A contains the word âknowingly,â the
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government must prove that Linton knew that the means of
identification was at the crux of the health care fraud.
We need not opine on the correctness of Lintonâs reading of
the mens rea requirement because even under her interpretation
of the statute, the evidence at trial is more than sufficient to
establish that she knew the means of identification of Donald and
Doris Edenfield, Derrick Wester, and Dr. Almirol were âused . . .
during and in relation toâ the health care fraud conspiracy. First,
the evidence that Linton rerouted prescriptions for Donald and
Doris Edenfield and Derrick Wester to the address of Jeremy
Adams demonstrates her knowledge that the means of
identification were critical to the conspiracy. Linton knew that the
Edenfields and Wester had asked to no longer receive refills of their
prescriptions, yet she deliberately chose to continue billing
insurance for prescriptions obtained in their names. Linton thus
knew that the Edenfieldsâ and Westerâs means of identification
were being used to further the conspiracyâindeed, she was the
one who was using them.
Second, there is ample evidence that Linton knew that Dr.
Almirolâs means of identification were misappropriated. In her
email to Linton, Joshlyn Bowen offered to return to Dr. Almirol to
have him write an additional prescription for her husband. Linton
declined this invitation, instead choosing to alter the prescription
herself. Linton was thus aware that Dr. Almirolâs means of
identification would be used to permit her to bill for additional
medications on Robert Bowenâs behalf.
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Finally, Lintonâs vagueness argument is unavailing. As the
government correctly points out, Linton failed to preserve this
argument: she neither argued it to the district court, nor did she
raise it on appeal in her opening or reply briefs. While the question
of vagueness was not directly before the Court in Dubin, the Court
nevertheless made clear that â[t]he concurrenceâs bewilderment is
not, fortunately, the standard for striking down an Act of Congress
as unconstitutionally vague.â Dubin, 143 S. Ct. at 1573 n.10. Under
that guidance, we decline to find that Section 1028A is
unconstitutionally vague.
B. John Gladdenâs Convictions
Gladden raises several challenges to his convictions for
conspiracy, health care and mail fraud, and aggravated identity
theft. We address his arguments in turn, and ultimately uphold his
convictions for conspiracy, health care fraud, and mail fraud. But
we vacate his conviction for aggravated identity theft.
While Gladden acknowledges that âthere is no doubt that a
conspiracy existed within Global to defraud various insurance
companies,â he contends there is insufficient evidence to find that
he was aware of and willfully joined the conspiracy. We disagree.
The jury reasonably found that Gladden was aware of and
joined the conspiracy at Global based on the email Gladden sent to
Phillip Marks regarding Boydâs medically unnecessary
prescriptions and the emails Gladden sent to his subordinates
urging them to obtain prescriptions. Gladdenâs email to Marks, in
which he wrote âAMAZING . . . of the 27 scripts, only 2 are for []
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real patients . . . the other 25 appear to be for [Boyd],â undermines
any claim that he was unaware of the scheme at Global. See United
States v. Gonzalez, 834 F.3d 1206, 1216 (11th Cir. 2016) (finding a
jury could infer knowledge based on evidence that the defendant
knew she was providing services that were not medically
necessary). The email exchange between Gladden and Megan
Rumble, where Rumble stated âI run into issues every month
getting my RXs filled along with the appropriate ones,â further
supports the juryâs finding that Gladden was privy to the scheme at
Global.
Not only was Gladden aware of the scheme at Global; he
capitalized on it. In one email to his subordinates, Gladden wrote
âeveryone should have a personal script for yourself, spouse, and
family membersâ and that he â[would] be monitoring this to make
sure that ALL OF TEAM GEORGIA has [their prescriptions].â
When Dawn Whitten responded to Gladden that she was worried
that obtaining prescriptions she did not need would raise âred
flags,â he did not share her concern. Instead, he said she should
have her endocrinologist âbuddyâ write her a prescription for a
topical cream. Thus, the jury could reasonably have interpreted
Gladdenâs emails as a directive to his subordinates to obtain
medically unnecessary prescriptions.
As for Gladdenâs health care and mail fraud convictions, he
argues that (1) there was insufficient evidence that the prescriptions
were medically unnecessary, given that it is not per se illegal for
sales representatives to obtain prescriptions for themselves or their
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family members; and (2) there was insufficient evidence of a
specific intent to defraud. We are unpersuaded.
With respect to Gladdenâs convictions for health care fraud,
the evidence presented at trial overwhelmingly demonstrates
Gladdenâs knowledge that the prescriptions obtained by Whitten
for herself and her family members were medically unnecessary.
See Medina, 485 F.3d at 1297 (stating that, to sustain a conviction
for health care fraud under Section 1347, the government must
prove that the defendant knew that the submitted claims were
false). Gladdenâs argument that it is not per se illegal for sales
representatives to obtain prescriptions for themselves or their
family members is unavailing. The emails from Gladden to his
subordinatesâin which he directed them to obtain prescriptions
before any of them had visited a doctorâsupports the juryâs
inference that Gladden knew the prescriptions were medically
unnecessary. See United States v. Grow, 977 F.3d 1310, 1322 (11th
Cir. 2020) (per curiam) (finding sufficient evidence of Defendantâs
knowledge of healthcare fraud where âthere was evidence that
[Defendant] and his representatives told the telemedicine doctors
what to prescribe before the doctors consulted with recruitsâ);
United States v. Melgen, 967 F.3d 1250, 1255â57 (11th Cir. 2020)
(upholding a conviction for healthcare fraud where the scheme
involved a doctor âpre-fillingâ patient forms so that the eye
condition was a default diagnosis before the doctor even met with
a patient).
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These emails also support Gladdenâs mail fraud conviction.
Despite Whittenâs email explaining that neither she nor her family
members had any medical need for the prescriptions Gladden was
encouraging her to obtain, Gladden nevertheless told her to get a
âbuddyâ to write the prescriptions. This email exchange
sufficiently evinces the intent to defraud necessary to sustain
Gladdenâs mail fraud conviction. See Wheeler, 16 F.4th at 819 (âTo
prove that a defendant had the intent to defraud, the Government
has to prove that the defendants either knew they were making
false representations or acted with âreckless indifference to the
truth.ââ).
However, Dubin requires that we vacate Gladdenâs
conviction for aggravated identity theft. Because Gladden did not
raise a Dubin claim in the district court proceedings or on appeal,
we review for plain error.
As an initial matter, we disagree with the governmentâs
contention that âthere is no error or defect in the indictment or
jury instruction.â Rather, Dubin makes clear that the jury
instruction for aggravated identity theft is erroneous at least in part
because one sentence in the jury instructionââ[t]he means of
identification at least must facilitate, or have the potential of
facilitating, the crime alleged in the indictmentââsuggests that
mere facilitation of the predicate offense is sufficient to support a
conviction. The Court in Dubin rejected such a broad reading of
Section 1028A. Dubin, 143 S.Ct. at 1573. Because Dubin made clear
that âbeing at the crux of the criminality requires more than . . .
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facilitation of the offense,â the jury instruction was erroneous. Id.
(internal quotation marks omitted).
Further, we find that this error âaffected the outcome of the
district court proceedingsâ as to Gladden. Marcus, 560 U.S. at 262.
Gladdenâs conviction for aggravated identity theft was based on the
prescription that Whitten obtained for her minor daughter.
Whitten testified that the prescription in question was not
medically necessary, and that it was obtained using a pre-filled
prescription. The deception at the heart of Whitten and Gladdenâs
conduct, then, was obtaining the medically unnecessary
prescriptions. The use of Whittenâs daughterâs identifying
information was merely ancillary to the deception; indeed, at no
point did Whitten and Gladden misrepresent who received the
prescriptions. See Dubin, 143 S.Ct. at 1565 (âWhen a means of
identification is used deceptively, this deception goes to âwhoâ is
involved, rather than just âhowâ or âwhenâ services were
provided.â).
The conduct underlying Gladdenâs identity theft conviction
is thus distinct from Lintonâs. While Linton misrepresented who
was receiving the prescriptions, Gladdenâs misrepresentation to the
insurance companies and PBMs involved only whether the
prescriptions were medically necessary. This conduct was illegalâ
as we discuss aboveâbut it was not aggravated identity theft.
The governmentâs reliance on United States v. Michael, 882
F.3d 624 (6th Cir. 2018), is misplaced. There, the Sixth Circuit
found identity theft where the defendant used both the doctor and
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the patientâs identifying information to âfashion a fraudulent
submission out of whole cloth.â Id. at 629. Here, in contrast,
Gladden did not forge the name of the prescribing doctor on the
prescription. Nor did he misrepresent who would be receiving the
filled prescription. Rather, Whitten had her âdoctor buddyâ write
a prescription for her minor daughter, which she was lawfully
entitled to do. The only misrepresentation that occurred was
whether the prescription was medically necessary. Because a
reasonable jury could not convict Gladden of identity theft under
the standard articulated in Dubin, fairness dictates we vacate his
conviction. See Marcus, 560 U.S. at 262.
C. Forfeiture and Restitution
Only Gladden challenges the district courtâs forfeiture and
restitution orders. Gladden argues that the restitution and
forfeiture orders exceed the amount of loss that his actions caused.
Pursuant to Medina, he insists that his restitution and forfeiture
amounts should be limited to âthe amount of loss the government
proved the victim PBMs suďŹered when they paid for these
prescriptions,â rather than all of the income and prescriptions
Gladdenâs sales representatives generated.
The government argues that the district court did not clearly
err in imposing Gladdenâs restitution amount, as it is supported by
the total amount of loss attributable to him. Given the
reimbursements for medically unnecessary prescriptions that
Gladden directed others to obtain for themselves and their family
members, the government contends that $134,772.86 is a
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reasonable estimate of loss. As for forfeiture, the government
argues that the district court did not clearly err in ordering
forfeiture in the amount of $157,587.33. The calculated forfeiture
amount represents the net proceeds Gladden received during his
time at Global minus a $10,000 payment from Global that predated
his employment. Thus, the government contends that âthe district
court reasonably estimated that Gladdenâs salary represented gross
proceeds traceable toâ the fraud because he would not have
received the money but for âhis active participation in the
fraudulent conspiracy at Global.â
We ďŹrst address Gladdenâs arguments as to restitution,
before moving on to forfeiture.
1. Restitution
The Mandatory Victim Restitution Act of 1996 (âMVRAâ),
18 U.S.C. § 3663A, requires a defendant convicted of fraud to pay
restitution to the victims of his offense. 18 U.S.C. § 3663A(a)(1),
(c)(1)(A)(ii). The government bears the burden of proving the
amount of loss by a preponderance of the evidence. Id. § 3664(e).
However, âthe government need not calculate the victimâs actual
loss with laser-like precision, but may instead provide a âreasonable
estimateâ of that amount.â United States v. Martin, 803 F.3d 581, 595
(11th Cir. 2015).
Under the MVRA, an entity is a âvictimâ if it suffered âharm
that directly and proximately result[ed] from the commission ofâ
the offense. United States v. Robertson, 493 F.3d 1322, 1334 (11th Cir.
2007) (internal quotations omitted). â[T]he government must
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show not only that a particular loss would not have occurred but
for the conduct underlying the offense of conviction, but also that
the causal connection between the conduct and the loss is not too
attenuated (either factually or temporally).â Id. (quotations
omitted). In healthcare fraud cases, restitution amounts must be
offset by the value of medically necessary goods and services that
were provided. United States v. Bane, 720 F.3d 818, 828 (11th Cir.
2013). âThe defendant bears the burden to prove the value of any
medically necessary goods or services he provided that he claims
should not be included in the restitution amount.â Id. at 829 n.10.
We find no reason to disturb the district courtâs restitution
order. The evidence presented at trial demonstrates that Gladden
was an active participant in the conspiracy at Global and directed
his subordinates to take out medically unnecessary prescriptions.
See United States v. Whitman, 887 F.3d 1240, 1248 (11th Cir. 2018)
(explaining that the district court may hold all participants in a
conspiracy responsible for the losses resulting from the reasonably
foreseeable acts of co-conspirators that are âwithin the scope of the
jointly undertaken criminal activity [and] in furtherance ofâ the
activity (internal quotations omitted)). The district court thus did
not clearly err in basing restitution on the medically unnecessary
prescriptions that Gladden directed his subordinates to obtain.
Further, Gladden does not dispute Gerhardtâs calculations of
the loss amount caused by the medically unnecessary prescriptions.
However, Gladden argues that, under Medina, a prescription is
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medically necessary and should not be used to calculate restitution
so long as some of the medicine was used.
Gladdenâs reliance on Medina is misplaced. First, nowhere in
Medina did this Court hold that a prescription is medically
necessary so long as the intended recipient used some of the drug.
See generally Medina, 485 F.3d at 1304â05 (holding that the district
court clearly erred when it did not make specific factual findings on
which to base the loss amounts attributable to each defendant).
Second, in Medina, this Court found the district court committed
clear error where there was âno evidence presentedâ that the
claims at issue were not medically necessary. Id. at 1304. Here, in
contrast, the district court did not clearly err in finding that the
claims were not medically necessary. The evidence at trial was
sufficient to establish that Whitten and Rumble did not have a
medical need for the prescriptions they were obtaining. The district
courtâs restitution order stands.
2. Forfeiture
A defendant convicted of health care fraud must forfeit
property âthat constitutes or is derived, directly or indirectly, from
gross proceeds traceable to the commission of the offense.â 18
U.S.C. § 982(a)(7). To evaluate whether âgross proceedsâ are
âtraceable to the commission of the offense,â this Court applies a
but-for standard. United States v. Hoffman-Vaile, 568 F.3d 1335, 1344
(11th Cir. 2009). A defendantâs salary may be the proper measure
of forfeiture where âthe fraud was pervasive and the [companyâs]
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operations could not have continued at all without [the fraud].â
United States v. Moss, 34 F.4th 1176, 1195 (11th Cir. 2022).
Relevant here, the D.C. Circuit has applied a but-for test to
determine whether a forfeiture ordered under Section 982(a)(7)
excludes legitimate services from proceeds. See United States v.
Bikundi, 926 F.3d 761(D.C. Cir. 2019) (per curiam); see also Moss,34 F.4th at 1195
(citing Bikundi favorably in discussing but-for
reasoning in forfeiture cases). The Bikundi court held that forfeiture
ordered under Section 982(a)(7) did not exclude legitimate services
from proceeds where the money obtained from the fraud had
propped up the defendantsâ legitimate services. Bikundi, 926 F.3d at
793. On appeal, defendants challenged the forfeiture of the entirety
of the Medicaid proceeds received by defendantsâ company, despite
the district courtâs acknowledgement that the company provided
and was reimbursed for some legitimate services unconnected to
the health care fraud offenses. Id. at 792â93.
In upholding the forfeiture order, the D.C. Circuit first
emphasized the breadth of the statute that authorizes forfeiture in
health care fraud cases, noting that ââ[g]ross proceeds traceable toâ
the fraud include âthe total amount of money brought in through
the fraudulent activity, with no costs deducted or set-offs applied.ââ
Id.at 792 (citing United States v. Poulin,461 F. Appâx 272, 288
(4th
Cir. 2012)). Thus, the court noted that âwhereas other forfeiture
statutes allow credit for âlawful services,â . . . the statute for health
care fraud does not.â Id. at 793.
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The Bikundi court found no error in the district courtâs
determination that the total payments received constituted or were
derived from gross proceeds traceable to the health care fraud
offenses because âthe pervasive fraud was integral to each and
every Medicaid paymentâ to the company. Id. The district court
based this determination on the finding that the company âwould
not have operated but for [each] defendantâs fraudâ and that the
total Medicaid proceeds received were âonly paid due to the
defendantsâ persistent and rampant fraudulent conduct.â Id.
(quotations omitted).
Here, the district courtâs forfeiture amountâ$157,587.33â
represents a subset of the $167,587.33 in salary that Gladden was
paid by Global in 2015. The district court based this amount on the
determination that, at the time of the scheme, Global was
permeated with fraud and that âbut for the long-running health-
care-fraud conspiracy perpetrated by Defendant Gladden and
others, it would not have existed in the form in which it did,
generated anywhere near the revenue that it did, or paid Defendant
his $167,587.33 salary in 2015.â
Like in Bikundi, the evidence demonstrates that Globalâs
legitimate operations were facilitated by the illegitimate
operations. Gladden has presented no evidence calling the factual
accuracy of the district courtâs statement into question; there is
nothing to suggest that this was clear error by the district court.
Gladdenâs salary is thus the proper subject of forfeiture because, in
the absence of the conspiracy in which Gladden participated,
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Global would not have employed and compensated Gladden the
way that it did. In the language of the statute, Gladdenâs salary
constitutes the gross proceeds traceable to the commission of the
offense, because in the absence of Gladdenâsâand the other
conspiratorsââconduct, it is unlikely that Global would have been
able to continue operations in the manner that it did. Even if
Gladden did participate in some legitimate transactions during his
time at Global, these transactions were propped up by the
illegitimate transactions.
The district court thus did not clearly err in determining that
Globalâs operations were so pervaded by fraud that Gladden would
not have received his salary but for the scheme. The district courtâs
forfeiture order stands.
IV
For the reasons stated above, we conclude that the evidence
presented at trial was suďŹcient to support the juryâs verdict as to
all of Jessica Lintonâs convictions and as to John Gladdenâs
convictions for conspiracy, health care fraud, and mail fraud. In
addition, the district court did not clearly err in calculating John
Gladdenâs restitution and forfeiture amounts. However, because
John Gladdenâs use of the means of identiďŹcation of Dawn
Whittenâs minor daughter was merely ancillary to the health care
fraud, we vacate his conviction for aggravated identity theft and
remand for further proceedings consistent with this opinion.
AFFIRMED as to Jessica Linton and AFFIRMED IN PART,
VACATED IN PART, AND REMANDED as to John Gladden.