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-Appellant-

 Cross-Appellee.

 

Appeals from the United States District Court

for the Northern District of Alabama

 

(August 26, 2003)

Before DUBINA and FAY, Circuit Judges, and DOWD*, 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 evidence existed to convict him of the

charged offenses; that material variances existed between the indictment and the evidence adduced

at trial; that the district court was biased 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 incurred as a result of the fraud, by finding that Dr. Bobo abused a

position of public trust, and by denying Dr. Bobo’s request for a downward departure. The

government cross-appealsnumerous 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 because it

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

was incomplete and granting Dr. Bobo a three-point reduction in his offense level; whether the

district court erred by concluding that Dr. Bobo was not a leader or manager 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. Philip Bobo appeals his convictions for conspiracy to defraud

the United States and any health care benefit program, in violation of 18 U.S.C. §§

371, 1347(1), and attempting to defraud any health care benefit program, in

violation of 18 U.S.C. § 1347(1). On appeal, Dr. Bobo asserts numerous grounds

of error, but we find one issue dispositive: whether the district court erred by

denying Dr. Bobo’s motion to dismiss the indictment because the conduct alleged

in the indictment was legally insufficient to support Dr. Bobo’s conviction for

health care fraud. Because we conclude that the district court erred in failing to

dismiss the indictment, we decline to address the other issues raised on appeal.1

For the reasons that follow, we reverse the district court’s order denying Dr.

Bobo’s motion to dismiss the indictment and vacate Dr. Bobo’s convictions.
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 program, in violation of 18 U.S.C. §§ 371, 1347(1)

(Count I); attempt to defraud a health care benefit program, in violation of 18

U.S.C. § 1347(1) (Count II); and committing wire fraud, in violation of 18 U.S.C.

§ 1343 (Count III). Dr. Bobo pled not guilty and moved to dismiss the indictment. 

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 proceeded to trial, and a jury found Dr. Bobo

guilty of conspiracy to defraud a health care benefit program and attempt to

defraud a health care benefit program. Following a sentencing hearing, the district

court sentenced Dr. Bobo to 27 months imprisonment on the two counts, to be

served concurrently, followed by three years supervised release, and imposed a

$60,000 fine.

B. Facts

Dr. Bobo and Neighborhood Health Services
4

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, where he trained

firemen and paramedics in emergency medical services. Governor Don Siegelman

appointed Dr. Bobo State Emergency Medical Director, and Dr. Bobo served on

Governor Siegelman’s transition team from November 1998 to January 1999. Dr.

Bobo also held other medical-related positions, including physician for the

University of Alabama football team, and plant physician at Uniroyal Goodrich. 

In addition, Dr. Bobo founded Emergicare, a seven-day clinic where patients do

not need appointments in order to see a doctor.

In the 1980's, Dr. Bobo and three other doctors, pediatrician Dr. Phil

Phillips, general surgeon Dr. Charles Rose, and obstetrician and gynecologist Dr.

Karl Harbin created Neighborhood Health Services (“NHS”), a limited liability

corporation. The doctors formed NHS to provide primary medical care to patients

who would otherwise be forced to use the emergency room. Dr. Bobo and

attorney Boolis Boohaker are the administrators of NHS. Dr. Bobo serves as

managing partner and owns 51 percent of NHS. Mary Jo Looser, former

administrator of the maternity waiver program for the health department in a five

county area, serves as executive program director of NHS. NHS has two other
5

employees, Charlotte Jamison, care coordinator director, and Dr. Pat Lagrone,

director of quality assurance.

The Medicaid Maternity Waiver Program

Ms. Gwendolyn Williams, Commissioner of the Alabama Medicaid Agency

from 1995-1999, testified at Dr. Bobo’s trial that Congress created the Maternity

Care Program (“MCP”) in 1997 to address Alabama’s high infant mortality rate

and low level rate of prenatal care. The MCP’s purpose was to ensure

comprehensive medical services to pregnant women on medicaid, beginning with

prenatal treatment and following mother and child through the postpartum stage. 

Ms. Williams worked with federal agencies to construct a special maternity

medicaid program labeled a “waiver program” because it requires the patient to

waive mandated medicaid requirements such as “freedom of choice.” The

program, entitled Maternity Waiver Program (“MWP”), waives certain medicaid

requirements in exchange for an established network of services, specific 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 medical

treatment. Ms. Williams worked with the Alabama Medicaid Agency to increase

reimbursement rates and also worked with the Department of Health and other
6

agencies to establish a solid network of providers. After initial tests in a few

counties, the program expanded statewide.

Under the MWP, the Alabama Medicaid Agency divided the state of

Alabama into 13 districts. The districts at issue in this case are District 4, which

consists of Lamar, Fayette, Pickens, Tuscaloosa, and Bibb counties, and District 7,

which consists of Green and Hale counties. Entities within each district wishing

to provide MWP services bid competitively to offer a complete package of

benefits including prenatal visits, delivery, postpartum medical care, and case

management. Ms. Williams testified that approximately 70 percent of the funding

for the program comes from the federal government via the United States

Department of Health and Human Services, with the remaining 30 percent of

funding provided by the State. The initial statewide budget to finance the MWP

was $100,000,000. 

Ms. Williams Association with Dr. Bobo

Ms. Williams testified that she first met Dr. Bobo in early 1998, when he

expressed an interest in the MWP. After that first meeting, Ms. Williams stated

that Dr. Bobo called her almost weekly, offering suggestions about the MWP. Ms.

Williams testified that Dr. Bobo’s calls became increasingly hostile, so that she

ultimately refused to accept his calls. In July 1998, however, Ms. Williams met
7

with Dr. Bobo to discuss whether the MWP would use requests for proposals

(“RFP”) or invitations to bid (“ITB”) to seek potential providers. Dr. Bobo

requested that the MWP 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 relayed his concerns over the length of the process and the delays in

awarding the contracts. Ms. Williams responded that she did not have the

authority under state law to use only RFPs. 

Consequently, in October 1998, the agency released the ITBs. This

program requires the bidders to provide detailed documentation regarding access

to care, participating hospitals, average care time devoted to each patient, and

other pertinent information. The bidders provided this information via contracts

or signed letters of intent. NHS submitted bids for most of the districts.

The Bidding Process

Ms. Vicki Huff, former Alabama Medicaid Agency Director of Medical

Services, testified that her office prepared the 1998 ITBs. She stated that the

agency received bids with a bid price that represented the service provider’s

estimated cost per birth. The two original bidders in District 4 were NHS and

Alabama Health Network (“AHN”), a coalition composed of Druid City Regional

Health Authority, Bibb County Medical Center, Pickens County Medical Center,
3

 Ms. Huff testified that later it 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 NHS’s receipt of the contracts for those two districts.

8

West Alabama Health Network, and members from the Capstone Health Services

Foundation. AHN is a consortium of hospitals and clinics created specifically to

bid on contracts. For District 4, NHS bid $4,260 and AHN bid $3,889 to provide

services under the MWP. The bid price represented the cost to deliver one child,

including comprehensive prenatal care, education, and postpartum care. After the

agency evaluated the ITBs, State Finance Director, Dr. Henry C. Mabry, III,

notified NHS that it had received the contract for District 4. 

 As to District 7, of the three bidders, NHS, AHN, and Tombigbee Health

Care Authority, NHS’s bid was the highest, totaling $4,516 per delivery compared

to AHN’s bid of $3,949 per delivery. The State awarded District 7 to AHN.

On March 19, 1999, Dr. Mabry distributed a letter to all the bidders

identifying the “preliminary” winning bids. This letter identified NHS as the

MWP recipient for Districts 1, 4, and 9.3

 On May 13, 1999, Bill Newton, the

acting purchasing director for the Alabama Department of Finance, notified NHS

and AHN that all bids received for District 4 had been cancelled and District 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 date. 
9

On June 4, 1999, AHN filed a lawsuit protesting the rebid. AHN and the

State Medicaid Agency and the State Finance Department settled the lawsuit. 

NHS did not submit a second bid for District 4. The State then awarded District 4

to AHN. 

Conduct at Issue

Ms. Pam Parsons, an assistant vice-president for development at the

University of Alabama, testified that Dr. Bobo contacted her around May 11,

1999, regarding Capstone Medical Center (“Capstone”), a physician residency

program within the University of Alabama’s College of Community Health

Sciences. Dr. Bobo requested that Ms. Parsons relay information to the

University’s President, Dr. Andrew Sorenson, and to the associate dean for clinical

affairs at the College of Community Health Sciences, Dr. Marc Armstrong. The

information Dr. Bobo requested Ms. Parsons to “pass along” was that NHS would

pay $800,000 to the University via Capstone if AHN would withdraw its bid for

District 7 and its re-bid for District 4. Dr. Bobo would get part of this money from

the Fire College and NHS would pay the remainder. In exchange, Dr. Bobo would

guarantee admissions to Capstone and contract with Capstone to have residents

serve as first aid station attendants during Alabama football games. When Ms.

Parsons contacted Dr. Sorenson, he informed her that the University would not be
10

involved in the bidding process. On cross-examination, Ms. Parsons stated that

during her state grand jury testimony in July 1999, she testified that Bill Jones, the

University of Alabama’s Director of Governmental Relations and Chief Lobbyist,

called Dr. Bobo’s statements “negotiations,” and commented to her that they were

not unusual. 

Dr. Armstrong testified that in addition to his work at the College of

Community Health Sciences, he worked with Capstone training residents. He

stated that he was a member of the board of directors at Capstone Health Services

Foundation, a member of AHN, but acknowledged that he had no position or

authority with AHN. Dr. Armstrong testified that Dr. Bobo and Ms. Parsons each

telephoned him twice regarding the bidding process for the MWP. In Dr.

Armstrong’s first conversation with Dr. Bobo, Dr. Bobo represented that NHS

would win the re-bid for District 4 because of assurances from the Governor. Dr.

Bobo told Dr. Armstrong that if AHN did not re-bid for District 4, Dr. Bobo would

arrange for the College of Community Health Sciences to receive $550,000 per

year from the Fire College to lecture the emergency medical trainees and provide

residents to administer first aid at Alabama football games. Dr. Bobo also stated

that he would pay $250,000 for Capstone to take care of NHS’s medicaid

inpatients. 
11

Dr. Armstrong also testified that he was troubled by Dr. Bobo’s offer and

even thought Dr. Bobo was asking him to participate in a crime. Therefore, he

contacted his boss, Dean Bill Curry of the Alabama School of Medicine, and

Capstone’s business manager, John Maxwell. Dr. Curry recommended that Dr.

Armstrong put the substance of Dr. Bobo’s call in writing and contact AHN’s

attorney. AHN’s attorney instructed Dr. Armstrong to tape record any

conversation with Dr. Bobo. Dr. Armstrong further testified that Ms. Parsons

contacted him the day after he first spoke with Dr. Bobo, indicating that she was

supportive of Dr. Bobo’s offer and asking Dr. Armstrong if she could do anything

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

Armstrong tape record any further conversations with Ms. Parsons.

In a May 18, 1999, telephone conversation with Dr. Armstrong, Dr. Bobo

mentioned that NHS was a good business and that he had good people to run it. 

Dr. Bobo informed Dr. Armstrong that the deal was an ideal way to help

Capstone’s program with its funding difficulties. Dr. Bobo mentioned that no

strings were attached except what they had talked about the other day. He stated

that NHS would “do contracts” and work for Capstone, and he also stated that this

offer was not a bribe, but purely a business proposition. 
12

In a subsequent telephone conversation with Ms. Parsons, Dr. Armstrong

stated Dr. Bobo’s offer clearly: we’re getting $800,000 from Dr. Bobo, $550,000

from the Fire College and $250,000 from NHS. Dr. Armstrong told Ms. Parsons

that although he was not publicly involved with AHN, Dr. Bobo contacted him

because he and Dr. Bobo have a good relationship. Ms. Parsons admitted that Dr.

Sorenson understood Dr. Bobo’s offer to mean that the University would receive

$800,000 or nothing.

At Dr. Bobo’s trial, Mr. Maxwell testified that he was President of AHN,

but received compensation from the University for his work at Capstone and from

Capstone Health Services Foundation. Mr. Maxwell testified that during his

conversation with Dr. Bobo, Dr. Bobo indicated that he would do all he could to

keep up the number of deliveries “within the bounds of the law.” Mr. Maxwell

also stated that no bid was in effect for District 4 when he spoke with Dr. Bobo a

second time, at or near the end of May.

In a May 27, 1999, telephone phone conversation with Mr. Maxwell, Dr.

Bobo stated that he had made an offer that was good for everybody. 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 additional
13

funds put in the Fire College with the blessings of the administration. . . . 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, Dr. Bobo stated that they needed to see where else they could plug

programs to make contracts work to total the offered amount.

In a subsequent telephone conversation with Mr. Maxwell on June 1, 1999,

Dr. Bobo encouraged Mr. Maxwell to “do some convincing.” Dr. Bobo assured

Mr. Maxwell that he would get $800,000 in pocket, and that it would not be a one

time deal, but would occur every year. Dr. Bobo stated that NHS would get the

bid because Dr. Bobo could afford to go low on the price due to the contracts he

allegedly had. Dr. Bobo commented that he would give Capstone some money

every year and keep the residents busy. Mr. Maxwell responded that it made a lot

of sense to him, and as far as he was concerned, they had a deal.

Dr. Karl Harbin, a partner with NHS, testified that he understood that the

agency would not select the entity solely based on price, but would consider the

entity who best met all the requirements. Dr. Harbin did not participate in the bid

process, but did discuss it with Dr. Bobo. Dr. Harbin stated that, in one of his

conversations with Dr. Bobo, Dr. Bobo mentioned his discussions with Dr.

Armstrong and Mr. Maxwell. Dr. Bobo told Dr. Harbin that these individuals
14

were thinking of not bidding on the program because they thought 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 connections, he could obtain some funding from

the legislature for Capstone, similar to the institution exchange in which the

University of Alabama at Birmingham (“UAB”) participates. 

Dr. Harbin further testified that Dr. Bobo threatened, in no uncertain terms,

that if Dr. Bobo obtained the funding for Capstone, AHN should not re-bid on

District 4. Dr. Bobo asked Dr. Harbin to call Dr. Curry and others about his offer. 

Dr. Bobo called Dr. Harbin late one night informing him that a “Nick” from

Montgomery had flown to Tuscaloosa to discuss the MWP bids with Dr. Bobo. 

Dr. Harbin stated that when he discussed this information with an FBI agent, he

told the agent that “Nick” had a projected budget below which NHS should bid

and “Nick” had provided this figure to Dr. Bobo. Dr. Harbin estimated that this

meeting between “Nick” and Dr. Bobo occurred around May of 1999.

Dr. Bobo’s Trial Testimony

Dr. Bobo testified at trial and denied all charges, stating that he believed in

good faith that he had a right to do what he did. Dr. Bobo testified that he spoke

to Dr. Armstrong only about Capstone, not AHN. Dr. Bobo stated that he viewed
15

NHS as a means to provide quality medical services for indigent pregnant women,

but that he also hoped to recoup his investment and make money from the

program. Dr. Bobo testified that he had encouraged Dr. Armstrong to talk with

everyone about the offer. Dr. Bobo explained that he did not want the proposed

arrangement with the Fire College disclosed, not because 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 agreement between providers.

II. STANDARD OF REVIEW

“We review the district court’s denial of a motion 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. Pendergraft, 297 F.3d 1198, 1204 (11th Cir.

2002) (internal citation omitted).

III. DISCUSSION

For an indictment to be valid, it must “contain[] the elements of the offense

intended to be charged, 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,
4We have attached the indictment as an appendix to this opinion.

16

1047, 8 L. Ed. 2d 240 (1962) (internal quotations omitted); 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 indictment not framed to

apprise the defendant with reasonable certainty, of the nature of the accusation

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). Furthermore, if the indictment tracks the language of the statute, “it

must be accompanied with such a statement of the facts and circumstances as will

inform the accused of the specific offense, coming under the general description,

with which he is charged.” Id. at 765, 82 S. Ct. at 1048; see also Hamling v.

United States, 418 U.S. 87, 117-18, 94 S. Ct. 2887, 2907-08, 41 L. Ed. 2d 590

(1974). When the indictment uses generic terms, 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 case4 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 AHN, the indictment states that “Dr. Armstrong and several of his

associates and acquaintances formed the Alabama Health Network (“AHN”)

which is made up of Druid City Hospital Regional Health Authority, Bibb County

Medical Center, Pickens County Medical Center, West Alabama Health Network,

and members from Capstone Health Services Foundation.” [R. Vol. 1, Doc. 1]. 

The indictment further states that, after receiving bids for District 4, the agency

sent a letter to AHN informing it that District 4 was to be rebid due to confusion in

the bidding process, and the agency reset the deadline for June 21, 1999. See id.

Count I of the indictment charges that Dr. Bobo 

did unlawfully, willfully, and knowingly combine, conspire,

confederate and agree [with others known and unknown] to . . .

knowingly and willfully execute and attempt to execute a scheme and

artifice to defraud a health care benefit program, that is, the Maternity

Care Program being administered by the Alabama Medicaid Agency,

and financed by the Health Care Financing Administration of the

United States Department of Health and Human Services and the state

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 government alleges that

Dr. Bobo offered to pay AHN $800,000 for each year of the MWP if it would

refrain from submitting a rebid on District 4 and give up its contract in District 7,

and that this offer was part of the scheme and artifice to defraud. See id. The

indictment lists the overt acts as the telephone calls Dr. Bobo made to Dr.
18

Armstrong and Mr. Maxwell and the call that the unindicted co-conspirator made

to Dr. Armstrong regarding Dr. Bobo’s offer.

In Count II, the indictment incorporates the information supporting Count I

and charges that Dr. Bobo 

did knowingly and willfully execute and attempt to execute a scheme

and artifice to defraud a health care benefits program, that is the

Maternity Care Program, operated by the Alabama Medicaid Agency

and financed by the Health Care Financing Administration of the

United States Department of Health and Human Services and the state

of Alabama, in violation of Title 18, United States Code, Section

1347(1). See id. 

The indictment does not set forth the manner and means by which the scheme and

artifice to defraud operated, except to incorporate the manner and means

supporting the conspiracy count. The indictment also does not contain the

remaining language of the statute which provides, in part, that the fraud must be

“in connection with the delivery of or payment for health care benefits, items, or

services.” See 18 U.S.C. § 1347(1).

Typically, an indictment sets forth what the scheme was designed to deprive

the victim “of ”and then describes by what means 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. Dynalectric Co., 859 F.2d 1559, 1572 (11th Cir. 1988)

(noting that a mail fraud indictment charged defendants with conspiring to devise
19

a scheme and artifice to defraud the victim of money and their right to free and

open competition in the bidding process). Here, the underlying statute, 18 U.S.C.

§ 1347(1) refers to fraud in connection with the delivery or payment of “health

care benefits, items or services.” Not only does the indictment fail to mention a

fraud in connection with the delivery or payment of health care benefits, items, or

services in Counts I and II, but it also fails to specify of what precisely Dr. Bobo

was allegedly trying to defraud the MWP program: benefits, items, services, or

money. The benefits, items, or services could have been the difference in the bids

from the prior round of bids between AHN and NHS, as the government

contended at trial. Alternatively, the benefits, items, or services could have been

the money that Dr. Bobo proposed he would get from the legislature for Capstone. 

However, the indictment makes only a broad allegation of fraud in a health care

benefit program without the required specificity. An indictment that requires

speculation on a fundamental part of the charge is insufficient. See Hamling, 418

U.S. at 117, 94 S. Ct. at 2907.

Furthermore, the indictment does not specify the scheme or artifice to

defraud with which the government was charging Dr. Bobo. The indictment

contains no indication of what the government contended was unlawful about Dr.

Bobo’s conduct. At various times throughout the trial, the government mentioned
5

 The indictment alleges that Dr. Armstrong helped form AHN, but Dr. Armstrong testified

that he had no authority or control over AHN. [R. Vol. 6, p. 422].

20

Dr. Bobo’s “offer” of $800,000 as a “bribe” or as part of a “bid rigging” scheme. 

However, the government made no mention in the indictment of a federal statute

which prohibits the type of conduct alleged here. See, e.g., Dynalectric Co., 859

F.2d at 1572 n.17. Even if the government mentioned “bribe” in the indictment,

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

to a competing bidder. The alleged “bribe” was made to Dr. Armstrong, who

testified that he had no authority over the competitor, AHN.5 See WEBSTER’S

THIRD INTERNAT’L DICTIONARY (1986) (defining bribe as “a price, reward, gift or

favor bestowed or promised with a view to pervert the judgment or corrupt the

conduct esp. of a person in a position of trust”). The government did not state in

the indictment that Dr. Bobo’s offer of $800,000 to Capstone for its residents to

work the first aid station at football games and for it to provide care for some of

his medicaid patients is a crime under the health care fraud statute. 

Likewise, the indictment did not charge a violation of Alabama law. 

Alabama has no requirement that professional service contracts be competitively

bid. See Ala. Code § 41-16-51(a)(3) (2000). The indictment also contained no

allegation that Dr. Bobo’s conduct would violate the rules of the bid process, even
6

 We express serious doubt whether 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 pending. [R. Vol. 6, p. 614-15]. Additionally, the

documents submitted at trial indicate that the agency cancelled the ITBs 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 Walley, 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

in Montgomery 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 AHN a 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 competitive bidding, no allegation 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). Furthermore, there

is no allegation in the indictment that any future rebid by NHS would in any way

adversely affect the MWP.

Because the government incorporated the paragraphs from Count I of the

indictment in Count II, the jury may have believed that the overt acts alleged to

support the conspiracy charge were sufficient to describe the alleged scheme or

artifice to defraud. However, we have held that the overt acts are to 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). Even if overt acts could
7

 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 dismiss the indictment. Contrary to the indictment, the magistrate judge incorrectly found

that Dr. Bobo’s “scheme” was to win the contract with a higher bid. [R. Vol. 1, Doc. 45]. Further,

the magistrate judge erred in finding that the government’s allegations 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 scheme or artifice to defraud, they fail in this case. Overt act (b)

alleges that Dr. Bobo offered the $800,000 to Capstone, not AHN as the

government alleges in the “manner and means” paragraph supporting Count I. 

Thus, we cannot merely assume that the jury unanimously agreed on which overt

acts. See United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir. 1977).7

 The

failure of the jury to unanimously agree on which overt act constitutes the

“scheme” deprives Dr. Bobo of the right to a unanimous verdict. See id.

Due to the inadequacies in the indictment, we cannot discern what scheme

the jury found Dr. Bobo had committed. Hence, Count II cannot stand. Where the

scheme to defraud alleged in the substantive count is not sufficient to state an

offense, then a conspiracy count based upon the charge must also be found

deficient. See McNally, 483 U.S. at 361, 107 S. Ct. at 2882. Thus, Count I also

fails. Accordingly, we conclude that the district court erred in failing to dismiss

the indictment because it does not state an offense under the health care fraud

statute, and thus, as a matter of law, is deficient.

8
of subsection (1) only.

9

Even if we assume that the district court properly denied the motion to dismiss the

indictment, we would still be compelled to vacate Dr. Bobo’s convictions on other grounds. For

example, we seriously question whether the evidence presented was sufficient to support the

convictions and it appears there 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 during the course of the trial and believe that the cumulative effect of these errors may

have denied Dr. Bobo a fundamentally fair trial.

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 indictment. Accordingly, we reverse the district court’s denial of

Dr. Bobo’s motion to dismiss the indictment and vacate Dr. Bobo’s convictions.9

REVERSED and VACATED.