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UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 97-60157
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOWARD DAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
January 13, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Howard Davis appeals his conviction for conspiracy to offer
and pay inducements for Medicare patient referrals, in violation of
18 U.S.C. § 371, and two counts of offering and paying such
inducements, in violation of 42 U.S.C. § 1320a-7b(b)(2)(A). Davis
alleges that the district court erred in failing to give the jury
certain requested instructions regarding the mental state required
to violate the relevant statutes and also in admitting evidence of
multiple, unrelated conspiracies. We affirm.
We review a district court's refusal to give a requested
instruction only for an abuse of discretion. United States v.
Smithson, 49 F.3d 138, 142 (5th Cir. 1995). In order to prevail
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under this standard, Davis must demonstrate that his requested
instructions were (1) correct statements of the law, (2) not
substantially covered in the charge as a whole, and (3) of such
importance that "the failure to instruct the jury on the issue
seriously impaired the defendant's ability to present a given
defense." United States v. Upton, 91 F.3d 677, 683 (5th Cir.
1996), cert. denied sub nom. Barrick v. United States, 117 S. Ct.
1818 (1997).
Davis' first requested instruction asserts that the jury may
find Davis guilty of conspiracy only if it finds that Davis' cash
payments to a certain doctor were "for no other purpose" than
"inducing the referral of Medicare patients." This is an erroneous
statement of the law and was therefore correctly denied. See Polk
County, Tex. v. Peters, 800 F.Supp. 1451, 1456 (E.D. Tex. 1992)
(holding that as long as "the benefits extended to [the]
[d]efendant were, in part, an inducement for him to refer patients
to the hospital . . . [t]he Court must . . . find that the
Agreement . . . violates [the predecessor to 42 U.S.C. § 1320a-
7b(b)(2)(A)]"). Likewise, the district court correctly refused
Davis' second requested instruction dealing with the subject of
good faith because those concepts were adequately explained through
the district court's definitions of the terms "knowingly" and
"willfully." See Upton, 91 F.3d at 683 (finding the "good faith
defense . . . substantially covered by the charge" because the
"district court instructed the jury on `knowingly' and
`willfully'").
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Davis argues, however, that the general definitions of those
terms will not suffice here, given that 42 U.S.C. § 1320a-
7b(b)(2)(A) contains a "heightened scienter requirement." See
Hanlester Network v. Shalala, 51 F.3d 1390, 1400 (9th Cir. 1995)
(construing a similar provision of the Medicare-Medicaid anti-
kickback statute as requiring "(1) know[ledge] that § 1128B
prohibits offering or paying remuneration to induce referrals, and
(2) engag[ing] in prohibited conduct with the specific intent to
violate the law."). Without deciding whether the statute does
contain such a requirement, however, we note that even the
Hanlester court requires knowledge only that the conduct in
question was unlawful, and not necessarily knowledge of which
particular statute makes the conduct unlawful. See id. (finding
one defendant's conduct "knowing and willful" even under a
heightened standard of mens rea because "[h]er actions reflect both
knowledge that her conduct was unlawful, and a specific intent to
disobey the law."). Viewed in this light, the district court's
instructions amply protected Davis' interests by informing the jury
that knowingly "means that the act was done voluntarily and
intentionally, not because of mistake or accident," and willfully
"means that the act was committed voluntarily and purposely with
the specific intent to do something the law forbids; that is to
say, with bad purpose either to disobey or disregard the law." See
United States v. Garcia, 762 F.2d 1222, 1224 (5th Cir. 1985)
(approving substantially the same definition of "willfully" and
rejecting the argument that the definition "was incomplete since it
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did not clearly require that the Defendant have knowledge of the
particular law allegedly violated").
Davis also claims that the district court erred by admitting
evidence that his alleged co-conspirator, Jerry Dunn, offered not
only cash in exchange for Medicare referrals, but also offered
referring physicians the use of condominiums in Florida. Davis
claims that this additional proof created a material variance
between the indictment, which alleged only a single conspiracy, and
the proof at trial, which Davis claims showed two different
conspiracies----one to pay cash in exchange for referrals and one to
grant the use of condominiums in exchange for such referrals. In
order to prevail on a material variance claim, Davis would need to
demonstrate not only that a variance existed but also that it
affected his substantial rights. See United States v. Morgan, 117
F.3d 849, 858 (5th Cir.), cert. denied sub nom. Ryan v. United
States, 118 S. Ct. 454, and Wright v. United States, 66 U.S.L.W.
3417 (1997). Because the evidence is sufficient to prove Davis'
participation in at least one conspiracy involving cash payments,
however, we need not address whether a variance even existed
because "we have long held that when the indictment alleges the
conspiracy count as a single conspiracy, but the government proves
multiple conspiracies and a defendant's involvement in at least one
of them, then clearly there is no variance affecting that
defendant's substantial rights." See United States v. Faulkner, 17
F.3d 745, 762 (5th Cir. 1994) (citations omitted).
AFFIRMED.
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