### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUGUST 26, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

No. 02-11011

D. C. Docket No. 01-00171 CR-N-W UNITED STATES OF AMERICA, Plaintiff-Appellee, Cross-Appellant,

versus PHILIP K. BOBO, Defendant-Appe llant- Cross-Appellee.

Appeals from the United States District Court for th e Nort hern D istri ct of A labama

(August 26, 2003) Before DUBINA and FAY, Circuit Judges, and DOW D*, District Judge.

_____________________ *Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation.1 Dr. Bobo also asserts on appeal that insufficient ev idence e xisted to convict him of the charged offenses; that material variances existed between the indictment and the evidence adduced at trial; that the distr

ict court was bias

e d against

him and denied him a fair trial; that the district court’s instruction on “reasonable doubt” was incorrect; and that the district court erred at sentencing by miscalculating the loss inc urred as a result of the fraud, by finding that Dr. B obo abused a position of public trust, and by denying Dr. Bobo’s request for a down ward departure. The government cross-appeals numerou s issues: whether the district court erred in determining that it was unable to enhance Dr. Bobo’s sentence for minimal planning and abuse of public trust becaus e i t constituted

double-counting; whether the district court erred in finding that the conspiracy

scheme was incomplete andgranting Dr. Bobo a three-point reduction in his offense level; whether the district court erred by c

oncluding that Dr

. Bobo was not a le

ader or manag

er of the scheme

to defraud; and whether the district court erred in finding that Dr. Bobo had not obstructed justice. 2 DUBINA, Circuit Judge: Appellant Dr. P

hilip Bobo appeals his convictions for conspir acy to defraud the United States a

nd any health car

e benefit program

, in violation of 18 U. S.C. §§ 371, 1347(1), and at

tempting to defr

aud any health ca

re benefit progra

m, in violation of 18 U.S. C. § 1347(1). On a ppeal, Dr. Bobo a

sserts numerous

grounds of error, but we

find one issue dispositi

ve: whether the dist

rict court erred by denying Dr. Bobo’s motion to dismiss the indictment because the conduct alleged in the indictment

was legally ins

ufficient to support D

r. Bobo’s convict

ion for health care frau

d. Because we conclude that the distr ict court erred in failing to dismiss the indict

ment, we dec

line to address the oth

er issues raised on a

ppeal. 1 For the reasons that follow, we reverse the district court’s order denying Dr. Bobo’s motion t

o dismiss the indic

tment and vacat

e Dr. Bobo’s c onvictions.2 The district court dismissed the wire fraud count because the indictment failed to name the person who allegedly committed the wire fraud. 3 I. BACKGROUND A. Procedural History A federal grand jury indicted Dr. Bobo for conspiracy to defraud the United States and a health

care benefit prog

ram, in violat

ion of 18 U.S.C. §§ 371, 1347(1) (Count I); attem

pt to defraud a heal

th care benefit pr

ogram, in viola

tion of 18 U.S.C. § 1347(1) (Count II); and committing wire fraud, in violation of 18 U.S.C. § 1343 (Count III). Dr. Bob o pled not guilty and moved to dismiss the indi ctment. The district court denied Dr. Bobo’s motion to dismiss Counts I and II, but granted the motion as to Count III. 2 The case procee ded to trial, and a j ury found Dr. Bobo guilty of conspira

cy to defraud a

health care benef

it program and a

ttempt to defraud a health care benefit program. Following a sentencing hearing, the district court sentenced Dr

. Bobo to 27 months imprisonme nt on the two counts, t

o be served concurrent

ly, followed b

y three years supervised rele ase, and impose

d a $60,000 fine. B. Facts Dr. Bobo and Neighborhood Health Services4

Dr. Bobo has been a board-certified emergency room /trauma physician since 1973, working primarily at Druid City Hospital in Tuscaloosa, Alabama. He also served as medical director of the Alabama Fire College, w here he trained firemen and paramedics in emergency medical services. Governor Don Siegelman appointed Dr. Bobo State Emer gency Medical D

irector, and Dr

. Bobo served on Governor Siegelman’s transition team from November 1998 to January 1999. Dr. Bobo also held other m

edical-related p ositions, including phy sician for the University of Alabama football team, and plant physician at Un iroyal Goodrich. In addition, Dr. Bobo founded Em ergicare, a sev

en-day clinic w

here patients do not need appointments in order to see a doctor. In the 1980's, Dr.Bobo and three other doctors, pediatric

ian Dr. Phil Phillips, general surgeon Dr. Charles Rose, and obstetrician and gynecologist Dr. Karl Harbin cre

ated Neighborhood H

ealth Services (“

NHS”), a lim

ited liability corporation. The

doctors forme

d NHS to provide pr

imary m edical care to pat

ients who would otherwis e be forced to use th e emergency

room. Dr. Bobo and attorney Boolis Boohaker are the administrators of NHS. Dr. B obo serves as managing partner and owns 51 percent of NHS. Mary Jo Looser, f ormer administrator of the materni ty waiver prog

ram for the he

alth departme

nt in a five county area, serves as executive program director of NHS. NHS has two other5

employees, Charlotte Jamison, care coordinator director, and Dr. Pat Lagrone, director of quality assurance. The Medicaid Maternity Waiver Program Ms. Gwendolyn Williams, Com missioner of the Alabama Medicaid Agency from 1995-1999,

testified at Dr. Bobo’s trial that Congress created t

he Maternity Care Program

(“MCP”) in 1 997 to address Alaba ma’s high infa

nt mortality

rate and low level rate of prenatal care. The MCP’s purpose was to ensure comprehensive medical servi ces to pregnant wom

en on medicaid,

beginning with prenatal treatment and fol lowing mother and child through the post partum stage. Ms. William

s worked with fede

ral agencies to cons

truct a special m

aternity medicaid progr

am labeled a “

waiver program

” because it requir

es the patient to waive mandate

d medicaid req

uirements such a

s “freedom

of choice.” The program, enti

tled Maternity

Waiver Progra

m (“MW P”), waives ce

rtain medicai

d requirements in exchange for an e stablished network of services, specif

ic doctors, hospitals, and other medical providers. Under the program, the expectant mother has a case manager who functions as an overseer of the mother’s m edical

treatment. Ms. William

s worked with the A

labama Medica

id Agency to incr

ease reimbursement rates and also worked with the Departm ent of Health and other6

agencies to establish a solid network of providers. After initial tests in a few counties, the program expanded statewide. Under the MWP,

the Alabama M

edicaid Agency

divided the state of Alabama into 13 districts. The districts at issue in this case are District 4, which consists of Lam

ar, Fayette , Pickens, Tusc aloosa, and Bibb coun ties, and Distric

t 7, which consists of Gr

een and Hale counti

es. Entities wit

hin each district w

ishing to provide MWP ser

vices bid compet

itively to offer

a complete pac

kage of benefits including pre

natal visits, delive

ry, postpartum

medical car

e, and case manageme

nt. Ms. Willia

ms testified tha

t approximately

70 percent of the fu

nding for the program comes from the feder al government via the United States Department o f Health and Hum an Services, wi

th the remainin

g 30 percent of funding p rovided b y the State. The initial s tatewide b udget to f inance the MWP was $100,000,000. Ms. William

s Association with D

r. Bobo Ms. William

s testified that she f

irst met Dr.

Bobo in early 1998 , when he expressed an interest in the MWP. After that first meeting, Ms. W illiams stated that Dr. Bobo cal

led her almost w

eekly, offer

ing suggestions about the M WP. Ms. Williams te stified that Dr. Bobo’s calls beca me increasingl

y hostile, so tha

t she ultimately refused to accept his calls. In July 1998, however, Ms. W illiams met7

with Dr. Bobo to di scuss whether the M WP would use req

uests for proposals (“RFP”) or

invitations to bid (“

ITB”) to seek pote

ntial providers. D

r. Bobo requested that the M

WP use the RFPs

because then price

would not be the sole determining factor that the agency would consider in awarding the contracts. Dr. Bobo also relaye

d his concerns over th

e length of the proce ss and the delays in awarding the contr

acts. Ms. Wil

liams responded

that she did not have the authority under state l aw to use only RFPs. Consequently, i

n October 1998, the

agency relea

sed the ITBs. T

his program requir

es the bidders to provi

de detailed docum

entation regarding a

ccess to care, partici

pating hospitals, ave

rage care tim

e devoted to each pat

ient, and other pertinent info

rmation. The

bidders provided this i

nformation via contracts or signed letters of

intent. NHS subm

itted bids for mo st of the districts. The Bidding Proces s Ms. Vicki Huff, former Alabam a Medicaid Agency Director of Medical Services, testif

ied that her office

prepared the 1998 IT

Bs. She stated tha

t the agency receiv ed bids wit h a bid pric e that repre sented th e service p rovider’s estimated cost

per birth. The tw

o original bidders in D

istrict 4 were N

HS and Alabama Health Network (“AH N”), a coalition composed of Druid City Regional Health Authority, Bibb County Medical Center, Pickens County Medical Center,3 Ms. Huff testified that later i t became apparent that NHS did not demonstrate to the Alabama Medicaid Agency that

it had an adequate provider network for Districts 1 or 4; hence, the State withdrew NH S’s receipt of the contracts for th

ose two districts. 8 West Alabama Health Network, and m embers from the Capstone Health Services Foundation. AHN

is a consortium o f hospitals and clinic s created specifi cally to bid on contracts. F or District 4, N HS bid $4,260 and AH

N bid $3,889 to provide services under the M

WP. The bid pr

ice represented t

he cost to deliver one

child, including compre

hensive prenatal ca

re, education, a

nd postpartum ca

re. After the agency evaluated the ITBs, State Finance Director, Dr. Henry C. Mabry, III, notified NHS that it ha d received the contrac t for District 4. As to District 7,

of the three bidder

s, NHS, AHN

, and Tombigbee Health Care Authority, NHS’s bid was the highest, totaling $4,516 per delivery com pared to AHN’s bid of $3,949 per d elivery. The State awarded Distri ct 7 to AHN. On March 19, 1999, Dr. Mabry distributed a letter to all the bidders identifying the “

preliminary

” winning bids. This

letter identified N

HS as the MWP recipient f

or Districts 1, 4,

and 9. 3 On May 13, 1999, Bill Newton, the acting purchasing director for the Alabama Department o f Finance, notified NHS and AHN that all b

ids received for D

istrict 4 had been ca

ncelled and Distric

t 4 would have to be rebid due to irregularities in the bid process. Newton informed NHS that the agency would ask for rebids at a later dat e.9

On June 4, 1999, AH

N filed a lawsuit protesting the rebid.AHN and the State Medicaid Agency and t he State Finance Department s ettled the lawsuit. NHS did not subm

it a second bid for D istrict 4. The St ate then awarded District 4 to AHN. Conduct at Issue Ms. Pam Par

sons, an assistant vic e-president for de velopment at the University of A

labama, test

ified that Dr. B obo contacted her ar ound May 11, 1999, regarding Capstone Medical Center (“Capstone”), a physician residency program withi

n the University

of Alabama’ s College of Com munity Hea

lth Sciences. Dr.Bobo requested that M s. Parsons relay information to t

he University’s President, Dr. Andrew Sorenson, and to the associate dean for clinical affairs at the College of Comm unity Health Sc

iences, Dr. Ma

rc Armstrong . The information D

r. Bobo requested M s. Parsons to “ pass along” was that

NHS would pay $800,000 to the

University via

Capstone if AHN

would withdraw it

s bid for District 7 and its r

e-bid for Distric

t 4. Dr. Bobo wou

ld get part of this m

oney from the Fire College a

nd NHS would pay

the remainder

. In exchange, D

r. Bobo would guarantee adm

issions to Capstone and c ontract with Capsto

ne to have residents serve as first aid station attendants dur ing Alabama f

ootball games. When Ms. Parsons contacted D

r. Sorenson, he i

nformed her th

at the University

would not be10

involved in the bidding process. On cross-examination, Ms. Parsons stated that during her state gra

nd jury testim

ony in July 1999,

she testified that B ill Jones, the University of A

labama’s Director of Gover nmental Relat

ions and Chief Lobby

ist, called Dr. Bobo’s statements “negotiations,” and com mented to her that they were not unusual. Dr. Armst

rong testified that i

n addition to his work a

t the College of Community Health Sciences, he worked wi th Capstone traini ng residents. He stated that he was a member of the board of directors at Capstone Health Services Foundation, a m

ember of AH

N, but acknowledge

d that he had no position or authority with AHN. Dr. Arm strong testified that Dr. Bobo and Ms. Parsons each telephoned him twice regarding the bidding process for the MWP. In Dr. Armstrong’s first conversat ion with Dr. Bobo, Dr. Bobo re presented that NHS would win the re-bid for District 4 because of assurances from the Governor. Dr. Bobo told Dr. Arm

strong that if AHN

did not re-bid for D istrict 4, Dr. B obo would arrange for the College of Community Health Science s to receive $550,000 per year from the Fire College t

o lecture the em

ergency m

edical trainees a

nd provide residents to administer first aid at Alabama football games. D r. Bobo also stated that he would pay

$250,000 for Capstone

to take care of N

HS’s medicaid inpatients.11

Dr. Armst

rong also testified t

hat he was troubled b

y Dr. Bobo’ s offer and even thought Dr. Bo

bo was asking him

to participate in a crime. The refore, he contacted his boss, D ean Bill Curry of the Alabam

a School of Medicine , and Capstone’s business manager, John Maxwell. Dr. Curry re commended that Dr. Armstrong pu t the subs tance of Dr. B obo’s call i n writing a nd contact AHN’s attorney. AH

N’s attorney

instructed Dr. A

rmstrong to tape

record any conversation with D

r. Bobo. Dr. A

rmstrong furthe

r testified that Ms.

Parsons contacted him the day after he first spoke with Dr. Bobo, indicating that she was supportive of Dr. B obo’s offer and a sking Dr. Arm

strong if she could do a

nything to help consummate the deal. AHN’s attorney also recommended that Dr. Armstrong tape

record any fur

ther conversations w

ith Ms. Parsons. In a May 18, 1999 , telephone convers ation with Dr. A rmstrong, Dr

. Bobo mentioned that NHS was a good business and that he had good peopl e to run it. Dr. Bobo inform

ed Dr. Arm

strong that the deal w

as an ideal way

to help Capstone’s progra

m with its fundin

g difficulties. D

r. Bobo mention

ed that no strings were attached except what they had talked about the other day. He stated that NHS would “

do contracts” and w

ork for Capstone, a

nd he also stated that t

his offer was not a bribe, but purely a business prop osition.12

In a subsequent telep

hone conversation wi

th Ms. Parsons, D

r. Armstro

ng stated Dr. Bobo’ s offer clearly : we’re getting $800,000 from D

r. Bobo, $550,000 from the Fire

College and $250,000 f

rom NHS. D

r. Armstro

ng told Ms. Parsons that although he was n

ot publicly involved

with AHN, Dr

. Bobo contacted him because he and Dr. Bobo have a good relationship. Ms. Parsons admitted that Dr. Sorenson understood D

r. Bobo’s offer

to mean that the

University wo

uld receive $800,000 or nothing. At Dr. Bobo’s trial, Mr. Maxwell te stified that he was Pres ident of AHN, but received com

pensation from t

he University f

or his work at Capst

one and from Capstone Health Se

rvices Foundation. Mr. Maxwell tes tified that during his conversation with D

r. Bobo, Dr. B obo indicated that he w ould do all he could to keep up the number

of deliveries “

within the bounds of the

law.” Mr. Max

well also stated that no bid w

as in effect for D

istrict 4 when he spok

e with Dr. Bobo a second time, at o r near th e end of May. In a May 27, 1999, telephone phone conversation with Mr. Maxwell, Dr. Bobo stated that he ha

d made an offe

r that was good for e

verybody. Dr. Bobo mentioned that he needed District 4 as his “home base” because NHS had received the bids for several surrounding districts. Dr. Bobo informed Mr. Maxwell that “we may do it all through the Fire College . . . I managed to get some additional13

funds put in the Fire College wit h the bles sings of t he administ ration. . . . We would like to contract with some existing programs, rural health, etc., . . . we do an institution exchange.” After repeating the offer that he had made to Dr. Armstrong, D

r. Bobo stated that they needed to se e where else they

could plug programs to m

ake contracts wor

k to total the offere

d amount. In a subsequent telep

hone conversation wi

th Mr. Maxwell on J

une 1, 1999, Dr. Bobo encouraged Mr. Maxwell to “do some convincing.” Dr. Bobo assured Mr. Maxwell that

he would get $800,000 i n pocket, and that it would not be a one time deal, but

would occur every

year. Dr. Bobo stated that NH S would get the bid because Dr. B obo could afford to go l ow on the price due t

o the contracts he allegedly had. Dr. Bobo commented that he w ould give Capstone some money every yea r and keep the reside

nts busy. Mr. M

axwell responded tha

t it made a lot of sense to him,

and as far as he w

as concerned, the

y had a deal. Dr. Karl Har

bin, a partner wi

th NHS, testifi

ed that he understood th

at the agency would not select the entity solely based on pr

ice, but would consi

der the entity who best m

et all the requirem

ents. Dr. Har

bin did not participate

in the bid process, but did disc

uss it with Dr. Bob o. Dr. Harbin stated that, in one of his conversations with Dr. Bobo, Dr. Bobo mentioned his discussions with Dr. Armstrong and M

r. Maxwell. D

r. Bobo told Dr. H

arbin that these indiv

iduals14

were thinking of not bidding on the program because they th

ought NHS had the best program, and that they were concerned about the Capstone’s financial situation. Dr. Bobo told Dr. Harbin that he had assured Dr. Armstrong and Mr. Maxwell that with his political connect ions, he could obtain so

me funding from the legislature for

Capstone, simi

lar to the institution e

xchange in which the University of Alabama at Birmingham (“UAB”) particip ates. Dr. Harbin fur

ther testified that

Dr. Bobo threate

ned, in no uncertain

terms, that if Dr. Bobo ob

tained the funding for

Capstone, AHN should not re-bid on District 4. Dr. Bobo asked Dr. Harbin to call Dr. Curry and oth ers about his offer. Dr. Bobo called D

r. Harbin late on

e night informing

him that a “

Nick” from Montgomery had flown to Tuscal oosa to discuss t he MWP bids with Dr. Bobo. Dr. Harbin stat

ed that when he discu

ssed this informa

tion with an FBI age

nt, he told the agent that “

Nick” had a proje

cted budget below w

hich NHS should bid and “Nick” ha

d provided this figure to Dr. Bobo. Dr . Harbin estim

ated that this meeting betwe

en “Nick” and

Dr. Bobo occurr

ed around May of

1999. Dr. Bobo’s Tr

ial Testimony Dr. Bobo testifie

d at trial and denied

all charges, stat

ing that he believed in good faith that he had a

right to do what he did.

Dr. Bobo testifi

ed that he spoke to Dr. Armstrong only about Capstone, not AHN. Dr.Bobo stated that he viewed15

NHS as a me

ans to provide quality

medical servi

ces for indigent pre

gnant women, but that he also hoped to recoup his investm ent and make m

oney from t

he program. Dr

. Bobo testified tha

t he had encouraged D

r. Armstro

ng to talk with everyone about the offer. Dr. Bobo explained that he did not want the proposed arrangement with the Fire Colle ge disclosed, not bec ause he thought it was illegal, but because he had not worked out the details. Dr. Bobo stated unequivocally that he was not trying to prevent anyone from being a provider; rather, he was negotiating an agree

ment between providers.

II. STANDARD OF REVIEW “We revie

w the district cour

t’s denial of a m

otion to dismiss the

indictment for abuse of discretion, but the sufficiency of an indictment is a legal question that we review de novo.” United States v. P endergraft , 297 F.3d 1198, 1204 (11th Cir. 2002) (internal citation omitted).

III. DISCUSSION For an indictme

nt to be valid, it m

ust “contain[] the elements of the offense intended to be charge

d, and sufficiently

apprise[] the defendant of what he must be prepared to meet.” Russell v. United States , 369 U.S. 749, 763, 82 S. Ct. 1038,4 We have attached the indictment as an appendix to this opinion. 16 1047, 8 L. Ed. 2d 240 (1962) (internal quotations omitte d); United States v. Sanchez , 269 F.3d 1250, 1314 (11th Cir. 2001) ( en banc ), cert. denied , 535 U.S. 942, 122 S. Ct. 1327,

152 L. Ed. 2d 234 (

2002). “An indi

ctment not fra

med to apprise the defenda

nt with reasonable certainty, of t he nature of the ac cusation against him is defective, although it may follow the language of the statute.” Russell , 369 U.S. at 765 , 82 S. Ct. at 1047 (internal quotations

and citations omitted). Fur

thermore, if

the indictment t

racks the language o f the statute, “ it must be accom

panied with such a sta

tement of the f

acts and circum

stances as will inform the acc

used of the specific

offense, com

ing under the genera

l description, with which he is charged.” Id. at 765, 82 S. Ct. at 1048; see also Hamling v. United States , 418 U.S. 87, 1 17-18, 94 S. Ct. 28 87, 2907-08, 41 L. Ed. 2d 590 (1974). When the

indictment uses generic term s, it must state

the offense with particularity. Russell , 369 U.S. at 765, 82 S. Ct. at 1047. Additionally, an indictment must enable the defendant to enter a plea that will bar any “ future prosecutions for the same offense.” Hamling , 418 U.S. at 117 , 94 S. Ct. at 2907

. The indictment

in this case 4 alleges that the Alabama Medicaid Agency set the deadline for the MWP bid process at March 29 , 1999, and that NHS and AHN participated in the MWP program by submitting bids. In describing Dr.17

Armstrong and A

HN, the indictm

ent states that “

Dr. Armst

rong and several of h

is associates and acquaintances formed the Alabama Health Network (“ AHN”) which is made u

p of Druid City H

ospital Regional He

alth Authority,

Bibb County Medical Center,

Pickens County M

edical Center, W

est Alabama H

ealth Network, and members from Capstone Health Servi ces Foundation.” [R. Vol . 1, Doc. 1]. The indictment further states that, after receiving bids for District 4, the agency sent a letter to AH

N informing it t

hat District 4 was

to be rebid due to conf

usion in the bidding proc ess, and the agency reset th e deadline for June 2 1, 1999. See id. Count I of the indictm

ent charges that D

r. Bobo did unlawfully, willfully, and knowingly combine, conspire, confederate and agree [wi th others known and unknown] to . . . knowingly and wi

llfully execute

and attempt to e

xecute a schem

e and artifice to defr

aud a health care b enefit program , that is, the Mate

rnity Care Pro gram bein g admini stered by the Ala bama Medi caid Ag ency, and financed by t

he Health Care F inancing Admini stration of the United States De

partment of H

ealth and Huma

n Services and the s

tate of Alabama,

in violation of Title

18, United States

Code, Section 1347(1). [R. Vol. 1, Doc. 1]. In support of this count, under “manner and means,” the governme nt alleges that Dr. Bobo offere

d to pay AHN $8 00,000 for each y ear of the MWP

if it would refrain from

submitting a rebid on District 4 and gi ve up its contract in D

istrict 7, and that this offer was part of the scheme and artifi ce to defraud. See id. The indictment lists the overt acts as the telephone calls Dr. Bobo made to Dr.18

Armstrong and M

r. Maxwell and the

call that the unindic

ted co-conspirator

made to Dr. Armstrong regarding Dr. Bobo’s offer. In Count II, the ind

ictment incorpo

rates the inform

ation supporting Count I and charges that Dr

. Bobo did k nowin gly an d will fully execu te and attemp t to ex ecute a sche me and artifice to def

raud a health care

benefits program

, that is the Maternity Care Program, operated by the Alabama Medicaid Agency and financed by t

he Health Care F inancing Admini stration of the United States De

partment of H

ealth and Huma

n Services and the s

tate of Alabama,

in violation of Title

18, United States

Code, Section 1347(1). See id. The indictment

does not set forth the manner and m eans by which the

scheme and artifice to defr

aud operated, exc ept to incorporate th e manner and m

eans supporting the conspira

cy count. The

indictment also does not contain the remaining langu

age of the statute w

hich provides, in par

t, that the fraud m

ust be “in connection w

ith the delivery

of or payme

nt for health care

benefits, item

s, or services.” See 18 U.S.C. § 1347(1). Typically , an indictmen

t sets forth what the

scheme was de signed to deprive the victim “

of ”and then describ es by what m eans the scheme

was designed to be accomplished. See, e.g., Belt v. United States , 868 F.2d 1208, 1211 (11th Cir. 1989); United States v. D ynalectric Co. , 859 F.2d 1559, 1572 ( 11th Cir. 1988) (noting that a ma

il fraud indictm

ent charged defend

ants with conspiring t

o devise19

a scheme and a

rtifice to defra

ud the victim of m

oney and their r

ight to free and open competition in the bidding process). Here, the underlying statute, 18 U.S.C. § 1347(1) refers to fraud in connection w ith the delivery

or payment

of “health care benefits, i

tems or servic es.” Not only d oes the indictme

nt fail to mentio

n a fraud in connection w

ith the delivery

or payment

of health care ben

efits, items,

or services in Counts I and II, but it also f ails to specify o f what precisely Dr. Bobo was allegedly

trying to defra

ud the MWP progra

m: benefits, i

tems, servic es, or money. T he benefits, item

s, or services could have been the difference in the bids from the prior

round of bids betwee

n AHN and NHS,

as the governme

nt contended at trial. Alternatively , the benefits, it

ems, or servi

ces could have been the money that Dr. Bobo propos ed he would get from the leg islature for Capston e. However, the indictment makes only a broad allegation of fraud in a health car e benefit program without the required specificity. An indictment that requires speculation on a fu ndamental part of the charg e is insufficient. See Hamling , 418 U.S. at 117, 94 S . Ct. at 2907. Furthermore , the indictme nt does not specify

the scheme or a

rtifice to defraud with whic

h the government

was charging Dr.Bobo. The indictm ent contains no indication of what the government contended was unlawful about Dr. Bobo’s conduct. At various times throughout the trial, the government mentioned5 The indictment alleges that Dr. Armstrong helped form AHN, but

Dr. Armstrong testified that he ha d no author

ity or c ontrol ove

r AHN. [R. V

ol. 6, p. 42

2]. 20 Dr. Bobo’s “offer” of $800,000 as a “bribe” or as part of a “bid riggi ng” scheme. However, the gov

ernment m

ade no mention in t

he indictment of

a federal statute which prohibits t he type of conduct alleg ed here. See, e.g., D ynalectric Co. , 859 F.2d at 1572 n.17. E

ven if the governm

ent mentioned “

bribe” in the indictm

ent, no evidence exists to support such an allegation. Dr. Bobo did not offer a “bribe” to a competing bid

der. The allege

d “bribe” was

made to Dr. Armstrong, w ho testified that he ha d no authority over th e competitor, AHN. 5 See W EBSTER ’ S T HIRD I NTERNAT ’ L D ICTIONARY (1986) (defining bri

be as “a price , reward, gif t or favor bestowed or p

romised with a

view to pervert the

judgment or co

rrupt the conduct esp. of a pe

rson in a position of tru

st”). The govern

ment did not state

in the indictment t

hat Dr. Bobo’s offer of $800,000 to Capstone for its re sidents to work the first aid s

tation at football gam

es and for it to provide

care for som

e of his medicaid patients i s a crime under the health care fraud statute. Likewise, the indictment d id not charge a viol ation of Alabama law. Alabama has n

o requirement that professional se rvice contracts be

competitively bid. See Ala. Code § 41-16- 51(a)(3) (2000). The indictmen t also contained no allegation that Dr. Bobo’s conduct would violate the rules of the bid process, even6 We express serious doubtwhether a bid process was pending at the time Dr. Bobo made

his “offer” to Dr. Armstrong and Mr. Maxwell. Mr. Maxwell testified that when he discussed the offer with Dr. Bobo, no bid process was pendi ng. [R. Vol. 6, p. 614-15]. Additionally, the documents

submitted at trial indicate that the agency cancelled the I TBs for District

4 and the agency returned all bids to the vendor. Furthermore, the documents do not contain any indication that the agency reset a rebid date. See Def. Exh. 6, 7, & 8 (letter from Dale Wa

lley, Acting

Alabama Medicaid Commissioner, to Bill Newton, Acting Purchasing Director, Alabama Department of Finance; letter from Bill

Newton to NHS; and letter from Bill Newton to AHN). AHN’s complaint inMontgomery

County Circuit Court protesting the bid mentions a rebid date. See Def. Exh. 13, p. 6 (stating that by letter dated May 27, 1999, Medicaid mailed to AHNa copy of the ITB constituting the rebid for District 4. The rebid ITB stated that the bid must be received before June 21, 1999). 21 if a bid process were pending at the time. 6 Even if the new bid process had required compe

titive bidding, no alle

gation exists that, in

the absence of the alleged scheme, the MWP would have paid a lower price or received a better quality program. See e.g., McNally v. United States , 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987) (indictment alleged mail fraud). Furtherm ore, there is no allegation in the indictment that any future rebid by NHS would in any way adversely affect the MWP. Because the governm

ent incorporated the

paragraphs from

Count I of the indictment in Cou

nt II, the jury

may have be

lieved that the overt

acts alleged to support the conspirac

y charge wer

e sufficient to desc

ribe the alleged sc

heme or artifice to defr

aud. However,

we have held that th

e overt acts are t

o support the charge of conspiracy, “not to describe an alleged scheme to defraud. ” United States v. Adkinson , 135 F.3d 1363, 1377 ( 11th Cir. 1998). E ven if overt acts co

uld7 In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

8 The district court adopted the magistrate judge’s findings and conclusions on Dr. Bobo’s motion to dismis s the indic tment. Co ntrary to the i ndictment , the magist rate judge incorrectly found that Dr. Bobo’s “scheme” was to win the contrac

t with a higher bid

. [R. Vol. 1, Doc. 45]. Further, the magistrate judge erred in finding that the government’s alleg ations were sufficient to

support the charge under subsection (2) of 18 U.S.C. § 1347. The indictment charges Dr. Bobo with a violation 22 describe the schem

e or artifice to de

fraud, they f

ail in this case. O

vert act (b) alleges that Dr. Bobo offered the $80 0,000 to Capstone, no t AHN as the government alleges in t he “manner and means” paragraph supp orting Count I. Thus, we cannot m

erely assum

e that the jury

unanimously a

greed on which overt acts. See United States v. Gipson , 553 F.2d 453, 457-58 (5th Cir. 1977). 7 The failure of the ju

ry to unanim

ously agree on w

hich overt act consti

tutes the “scheme” deprives Dr. Bobo of the ri ght to a unanimous verd ict. See id

. Due to the in adequ acies in th e indi ctment , we can not d iscer n what scheme the jury found D

r. Bobo had com

mitted. Hence, Count II cannot stand. Where th e scheme to defraud alleged in the substantive count is not sufficient to state an offense, then a c onspiracy count ba sed upon the charge m

ust also be found deficient. See McNally , 483 U.S. at 361 , 107 S. Ct. at 288 2. Thus, Count I a lso fails. Accordin

gly, we concl

ude that the district

court erred in fa

iling to dismiss the indictment be

cause it does not state

an offense under the

health care fra

ud statute, and thus, a

s a matter of l

aw, is deficient

. 8of s ubs ect ion (1) onl y. 9 Even if we assume that t

he district court p

roperly de

nied the motion to

dismiss t

he indictment, we would still be compelled to vacate Dr. Bobo’s convictions on other grounds. For example, we seriously question whet her the evidence presented was sufficient to support the convictions and it appears the re was a material variance between the indictment and the evidence presented at trial. Furthermore, we have concerns about some of the district court’s rulings and actions taken duringthe course of the trial and believe that the cumulative effect of these errors may have denied Dr.

Bobo a fundamen

tally fair t rial.

23 IV. CONCLUSION Although we do not condone Dr. Bobo’s “offer,” we cannot say, as a matter of law, that he violated the health care fraud statute, 18 U.S.C. § 1347(1), as alleged in the indictm

ent. Accordingly

, we reverse the

district court’s

denial of Dr. Bobo’s m

otion to dismiss the

indictment and va

cate Dr. Bobo’ s convictions. 9 REVERSED and VACATED.