[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 18-11165

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

PATRICK TONGE, 

SERGE FRANCOIS,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:16-cr-20399-DPG-2

____________________

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Before BRANCH, GRANT, and BRASHER, Circuit Judges.

PER CURIAM:

Patrick Tonge and Serge Francois were convicted of federal 

crimes arising out of their work at Atlantic Pharmacy & Compounding, a Florida pharmacy that collected over thirty-one million dollars in fraudulent claims from federal insurance programs. 

Both men challenge their convictions on direct appeal. After careful consideration and with the benefit of oral argument, we affirm

their convictions and sentences. 

I. Background 

The defendants’ convictions, and thus these appeals, begin

and end with Atlantic Pharmacy, a pharmaceutical business that 

manufactured and sold custom medications. Serge Francois 

opened Atlantic in 2009, owned the business, and was the pharmacist-in-charge. Atlantic’s business operations largely involved nonsterile compounding, specifically the creation of compound prescription creams (“CPCs”) from scratch using various raw materials. Francois hired Patrick Tonge, his former used car dealer and

personal trainer, to manage Atlantic’s CPC business, despite Tonge 

having no pharmaceutical training. In total, Atlantic collected over 

thirty-one million dollars in claims for CPCs from TRICARE and 

the Federal Employee Health Benefits Program (“FEHBP”), two 

federal insurance programs.

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In 2017, Tonge and Francois were indicted on federal 

charges including conspiracy, healthcare fraud, paying illegal 

healthcare kickbacks, introducing misbranded drugs into interstate 

commerce, money laundering, obstruction, and making false statements. The government alleged that Tonge and Francois stole millions of dollars from federal healthcare programs by (1) making 

misrepresentations about Atlantic that allowed the pharmacy to 

obtain access to federal insurance networks; (2) filing fraudulent 

claims based on invalid CPC prescriptions; and (3) paying illegal 

kickbacks to “marketers” who then paid doctors and patients to 

fuel Atlantic’s CPC business. 

After a lengthy trial in the Miami federal courthouse, jury 

deliberations began on Thursday, August 31. By Tuesday, September 5, Hurricane Irma had formed in the Gulf of Mexico. That afternoon, the district court informed the parties, outside the hearing 

of the jury, that one juror would have difficulties returning the next 

day due to the need to make storm-related preparations. Another 

juror needed to return a rental car by 6:00 PM that evening. The 

lawyers agreed to allow the jury to continue deliberating as long as 

possible on Tuesday, even going so far as to pay for an extra day of 

the juror’s rental car to allow deliberations to continue past 6:00 

PM. The jury returned a verdict that evening at or around 9:50 PM 

convicting Tonge and Francois of many of the charged offenses

while acquitting each defendant of at least some counts. 

Below, we describe the background of Atlantic’s CPC business as it relates to the convictions at issue in this appeal. Because 

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Francois and Tonge were convicted, we take the evidence in the 

light most favorable to the government. 

A. Atlantic’s Misrepresentations to Gain Admission to a

Federal Insurance Network and Obtain a DEA Registration

TRICARE and the FEHBP contracted with a pharmacy benefit manager, Express Scripts International, to establish a network 

of healthcare providers for use by the programs’ beneficiaries. 

Membership in Express Scripts’s network was an ex ante requirement for submitting a claim to either TRICARE or the FEHBP. 

Any pharmacy that wanted to submit claims for CPCs would also 

have been required to possess a Drug Enforcement Administration 

(“DEA”) registration to dispense or handle controlled substances in 

the pharmaceutical context. Atlantic was admitted to Express 

Scripts’s network and received a DEA registration, allowing it to 

submit claims to TRICARE and the FEHBP and work with CPCs 

containing controlled substances. 

In obtaining these privileges for Atlantic, Francois made substantial misrepresentations to Express Scripts and the DEA. First,

Francois lied about himself and Atlantic throughout the pharmacy’s interactions with Express Scripts. Francois submitted Atlantic’s initial application in 2010 and made subsequent recertifications 

in 2013 and 2014. As part of these interactions, Francois stated that 

his sister Rosemary owned Atlantic, that his DEA license had never 

been suspended, that he had never been arrested, that he had never 

filed for bankruptcy, and that Atlantic had never paid more than 

twenty-five thousand dollars to any subcontractor. Each of those 

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representations was false. If Francois had been truthful, Express 

Scripts would never have credentialed Atlantic as an in-network 

provider, walling it off from TRICARE and FEHBP claims. And 

second, Francois lied during Atlantic’s DEA registration by asserting that his DEA license had never been suspended when in fact, it 

had been. Were it not for this lie, the DEA would have never 

granted Atlantic a registration allowing the pharmacy to fill and 

dispense CPC prescriptions involving controlled substances. 

B. Atlantic’s Fraudulent CPC Business 

The problems at Atlantic Pharmacy did not end with Francois’s misrepresentations to Express Scripts and the DEA. To receive payment from Express Scripts on any given claim, an in-network pharmacy had to satisfy two requirements: (1) the prescription underlying the claim had to be valid and (2) the patient had to 

have been charged a co-payment. For a prescription to be valid, a 

physician had to have examined the patient, the prescription 

needed to have been medically necessary, and the pharmacy 

needed to have been licensed in the patient’s home state. Although 

Francois and Tonge processed, certified, and submitted Atlantic’s 

CPC claims to Express Scripts, those claims systematically failed to 

meet either requirement. 

Atlantic’s CPC operations proceeded as follows. First, a physician would send a prescription to Atlantic where it would be processed and entered into a computer system. The employee entering this information was required to be a licensed pharmacist or 

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pharmacy technician. Then, the processing employee submitted 

the file to Express Scripts for approval, and Atlantic filled the prescription if the claim was eventually approved. Despite his complete lack of pharmaceutical training, Tonge processed many of Atlantic’s CPC prescriptions and submitted many of its claims. Next, 

after Express Scripts approved a prescription, a pharmacy technician manufactured the CPC, and a pharmacist, usually Francois, 

reviewed and certified it as valid. Finally, Atlantic would dispense

the CPC to a patient, often mailing prescriptions to patients living

in states where Atlantic was not licensed to do business. 

The fraudulent nature of Atlantic’s CPC business was due

just as much to its marketing, which relied on paying doctors and 

patients to generate prescriptions, as its fulfillment practices. Over 

the life of the business, Atlantic contracted with several different 

“marketers” to promote its CPCs: DIRIV, PGRX, and RX. In each 

case, Atlantic agreed to pay a percentage of the profits earned on 

every CPC back to the marketer that referred the prescription. In 

turn, Atlantic’s marketers paid doctors, patients, and other parties 

to obtain access to the physician signatures and federal insurance

beneficiary identities required to submit fraudulent claims to

TRICARE and the FEHBP. Atlantic maintained close ties with its 

marketers, oftentimes directly involving itself in the scheme by (1) 

engaging in detailed negotiations with marketers and doctors concerning the kickback percentage that Atlantic would pay; (2) changing the chemical formulas that it requested marketers write prescriptions for; (3) ignoring credible reports that at least some CPC 

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prescriptions were being written using forged physician signatures; 

and (4) attempting to hire away marketers’ physicians to work directly for Atlantic

C. Atlantic’s Attempts to Conceal its Fraud 

Perhaps unsurprisingly, many patients contacted Atlantic to 

try to return medicationsthat they knew nothing about and neither 

needed nor wanted. To minimize losses from repayment obligations and conceal the number of attempted returns, Francois and 

Tonge adopted a policy to try to convince reluctant patients to 

keep their CPCs. Francois directed Tonge and another Atlantic employee, Amanda Lee, to tell patients that their medications were 

free because Atlantic was not charging any co-payment. But Tonge 

knew that co-payment reduction policies violated federal law because he had written himself an email explaining as much. Francois 

also lied to investigators during their search of Atlantic’s offices to 

prevent the discovery of equipment used to conduct the CPC business, was present on an email chain where Tonge asked the owners 

of RX, Celep and Sonsoles Simsir, to destroy physical and electronic 

evidence, and traveled to Lee’s home to demand that she not incriminate him in the fraud. Tonge deleted emails from an account 

he used to conduct pharmacy business when it became clear that 

Atlantic was under suspicion. 

Although Tonge and Francois attempted to conceal the 

fraudulent nature of Atlantic’s operations, that fraud was nevertheless open and obvious. One of Atlantic’s pharmacists quit three 

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months after being hired due to his perception of rampant fraud, 

and other employees believed fraud was occurring based on daily 

calls from customers complaining about unwanted CPCs. Despite 

these events, Francois certified CPC prescriptions as valid that his 

former employee had rejected as fraudulent. 

II. Standards of Review 

We review prosecutorial misconduct claims and the sufficiency of the evidence de novo. United States v. Eckhardt, 466 F.3d 

938, 947 (11th Cir. 2006); United States v. Mendez, 528 F.3d 811, 

814 (11th Cir. 2008). Evidentiary rulings and refusals to give a requested jury instruction are reviewed for abuse of discretion. 

United States v. Tokars, 95 F.3d 1520, 1530–31 (11th Cir. 1996). And 

although “[w]e review de novo the legal question of whether an 

indictment sufficiently alleges a statutorily proscribed offense . . . a 

district court’s denial of a motion to dismiss an indictment is reviewed for abuse of discretion.” United States v. Seher, 562 F.3d 

1344, 1356 (11th Cir. 2009). Claims not preserved at trial are reviewed only for plain error, meaning the defendant bears the burden of establishing an error that was plain, affected his substantial 

rights, and seriously affected “the fairness, integrity, or public reputation of judicial proceedings.” United States v. Gonzalez, 834 

F.3d 1206, 1218 (11th Cir. 2016). Non-constitutional error is harmless when it does not affect the substantial rights of the parties. 

United States v. Gallegos-Aguero, 409 F.3d 1274, 1277 (11th Cir. 

2005).

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III. Discussion 

Tonge and Francois challenge their convictions on a number of grounds, some raised by both defendants and some only by 

Francois. We discuss each issue in turn below, specifying the applicable defendant or defendants.

A. Sufficiency of the Indictment

Francois begins by challenging the sufficiency of Counts 

One through Nineteen of the Fourth Superseding Indictment. Because the indictment’s text mirrored the relevant statutes and in 

several cases was nearly identical to language we have expressly 

approved, the challenged counts were legally sufficient on de novo 

review. Thus, we conclude that the district court did not abuse its 

discretion in denying Francois’s motion to dismiss. 

As an initial matter, Francois has waived any challenge as to 

the sufficiency of Count Fourteen. Rule 12(b)(3)(B) of the Federal 

Rules of Criminal Procedure requires that any claim of defect in an 

indictment “be raised by pretrial motion if the basis for the motion 

is then reasonably available and the motion can be determined 

without a trial on the merits.” FED. R. CRIM. P. 12(b)(3)(B). When a 

criminal defendant fails to properly raise a defense based on a defect in the indictment “that was clear from the face of the indictment and that does not satisfy any of the exceptions set forth in

[Rule 12]” he “waive[s] this issue by failing to raise it in a pretrial 

motion.” United States v. Ramirez, 324 F.3d 1225, 1227 (11th Cir. 

2003). Because Francois’s motion to dismiss did not cover Count 

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Fourteen and there has been no argument that either of Rule 12’s 

exceptions apply, Francois has abandoned any sufficiency challenge 

as to that count. 

Francois’s properly raised challenges to Counts One 

through Thirteen and Fifteen through Nineteen fare no better. A

legally sufficient indictment must “contain[] the elements of the offense charged and fairly inform [the] defendant of the charge 

against which he must defend.” Hamling v. United States, 418 U.S. 

87, 117 (1974). It must also “enable[] him to plead an acquittal or 

conviction in bar of future prosecutions for the same offense.” Id.

We have explained that “we need not find an indictment defective 

simply because it fails to allege mens rea so long as the allegation 

that the crime was committed with the requisite state of mind may 

be inferred from other allegations in the indictment.” Seher, 562 

F.3d at 1356. And generally, “practical, rather than technical, considerations govern.” Id. (quoting United States v. Hooshmand, 931 

F.2d 725, 735 (11th Cir. 1991)).

Counts One through Thirteen of the indictment were legally sufficient because they mirrored the relevant statutes, charging Francois with knowingly and willfully conspiring “to knowingly and willfully execute a scheme and artifice to defraud a health 

care program . . . by means of materially false and fraudulent pretenses, representations, and promises.” To begin with, the conspiracy statute is almost identical to the indictment, criminalizing “attempt[ing] or conspir[ing] to commit any offense under [Chapter 

63],” including healthcare fraud, which is defined as “knowingly 

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and willfully execut[ing], or attempt[ing] to execute, a scheme or 

artifice . . . in connection with the delivery of or payment for health 

care benefits, items, or services . . . to defraud any health care benefit program; or . . . obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property 

owned by, or under the custody or control of, any health care benefit program[.]” 18 U.S.C. §§ 1347, 1349. The indictment also identified the manner and means of the charged conspiracy and alleged 

that Francois “knowingly caused Atlantic to submit $37,263,519 in 

false and fraudulent claims to TRICARE and [the] FEHBP for compounded medications which were not medically necessary, not 

properly prescribed by a licensed medical professional and often 

not provided to TRICARE and FEHBP beneficiaries.” Thus, Count 

One of the indictment took pains to “fairly inform [Francois] of the 

charge[s] against which he must defend.” Hamling, 418 U.S. at 117.

Counts Two through Thirteen, which charged specific acts of 

healthcare fraud, contained the same mirroring language and description of the alleged scheme to defraud. And like Count One, 

Counts Two through Thirteen charted relevant information for

each count, including the TRICARE beneficiary, the date of the 

claim, the prescription number, the amount claimed by Atlantic, 

and the first ingredient in each prescription. 

In addition, Counts One through Thirteen were sufficient as 

a matter of law in the light of our recent decision upholding an indictment for healthcare fraud and conspiracy using language nearly 

identical to that used in this case. See United States v. Chalker, 966 

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F.3d 1177, 1190–91 (11th Cir. 2020). We held in Chalker that the 

indictment, far from being “too vague to pass muster,” instead 

“specifically referred to and tracked the language of the statute on 

which it was based” and “provided notice to the defendant of the 

charges to be defended.” Id. at 1191 (cleaned up). What we said of 

the language in Chalker holds true for the nearly identical language 

at issue today. 

Francois’s argument regarding Counts Fifteen through 

Nineteen, which charged the payment of healthcare kickbacks in 

violation of 42 U.S.C. § 1320a-7b(b)(2)(A), fails for the same reasons: namely that the indictment mirrored the statutory text and 

provided Francois sufficient notice of the charges to be defended.

Counts Fifteen through Nineteen charged that Francois “did knowingly and willfully offer and pay any remuneration, that is, kickbacks and bribes . . . to a person to induce such person to refer an 

individual to a person for the furnishing and arranging for the furnishing of any item and service for which payment may be made 

in whole and in part by . . . TRICARE.” The anti-kickback statute

criminalizes “knowingly and willfully offer[ing] or pay[ing] any remuneration (including any kickback, bribe, or rebate) . . . to any 

person to induce such person . . . to refer an individual to a person 

for the furnishing or arranging for the furnishing of any item or 

service for which payment may be made in whole or in part under 

a Federal health care program.” 42 U.S.C. § 1320a-7b(b). The indictment tracked the anti-kickback statute almost word for word. 

In addition, Counts Fifteen through Nineteen charted relevant 

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information for each Count, including the approximate date and 

amount of the charged kickback payments. Just as we said of the 

healthcare fraud indictment in Chalker, Counts Fifteen through 

Nineteen “specifically referred to and tracked the language” of the 

anti-kickback statute and “provided notice to [Francois] of the 

charges to be defended.” Chalker, 966 F.3d at 1191 (cleaned up).

Thus, we conclude that the indictment was legally sufficient

and that the district court did not abuse its discretion by declining 

to grant Francois’s motion to dismiss.

B. Evidentiary Issues

1. Kazarian’s Testimony

Tonge and Francois each challenge the testimony of David 

Kazarian, the government’s expert witness on pharmacy practices. 

Both defendants argue that Kazarian’s testimony exceeded the 

scope of the government’s expert notice, while Francois separately

claims that he gave improper lay witness testimony under Federal 

Rule of Evidence 701. Because Kazarian testified as an expert and 

did so within the scope of the government’s notice, the district 

court did not err in admitting his testimony.

First, Francois’s challenge to Kazarian as having presented 

improper lay witness testimony fails as a matter of fact. Kazarian 

was properly qualified as an expert, testified as an expert at trial, 

and was the subject of several objections by defense counsel based 

on his testimony being constrained by the government’s expert notice. At trial, Francois never objected to Kazarian’s testimony as 

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being improper lay opinion, instead focusing on evidentiary issues 

only relevant to expert testimony. While the prosecution did plan 

to elicit lay opinion from former Atlantic employees under Rule 

701, it had nothing to do with Kazarian. 

Second, Tonge and Francois’s joint challenge to Kazarian’s 

testimony as outside the scope of the government’s expert notice

also fails. “We review for abuse of discretion the district court’s decisions regarding the admissibility of expert testimony and the reliability of an expert opinion.” United States v. Barton, 909 F.3d 1323, 

1330 (11th Cir. 2018) (quoting United States v. Frazier, 387 F.3d 

1244, 1258 (11th Cir. 2004)). “[W]hen employing an abuse-of-discretion standard, we must affirm unless we find that the district 

court has made a clear error of judgment, or has applied the wrong 

legal standard.” Frazier, 387 F.3d at 1259. Specifically, we “will not 

overturn an evidentiary ruling and order a new trial unless the objecting party has shown a substantial prejudicial effect from the ruling.” Maiz v. Virani, 253 F.3d 641, 667 (11th Cir. 2001). “Substantial 

prejudice goes to the outcome of the trial; where an error had no 

substantial influence on the outcome, and sufficient evidence uninfected by error supports the verdict, reversal is not warranted.” Barton, 909 F.3d at 1331 (cleaned up). If a defendant does not object, 

we review only for plain error. Frazier, 387 F.3d at 1268 n.21. 

The government’s expert notice provided that Kazarian 

would testify on the standard practices of pharmacies like Atlantic. 

Specifically, the notice highlighted two topics: (1) whether automatic refilling and dispensation-by-mail without notification to or 

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request by a patient was standard practice; and (2) whether pharmacists were obligated to investigate certain “red flags” that indicate a potentially invalid prescription. The government stated that 

“[Kazarian] will not be opining on highly technical issues, such as 

causation, medical procedures, or damages” and agreed not to ask 

him to discuss “the quality or usefulness of the medications [that 

Atlantic] sold.” 

On abuse of discretion review, there is no evidence that the 

district court “made a clear error of judgment” or “applied the 

wrong legal standard” by allowing Kazarian to explain that it would 

be a red flag for a large number of differently situated patients to 

receive prescriptions for the exact same dosage. See id. at 1259. At 

trial, Kazarian testified over objection that an 85-year-old and 11-

year-old receiving the exact same dosage would have been a red 

flag. During the remainder of Kazarian’s testimony, the defense 

made only one additional overruled objection based on the scope 

of the expert notice, this time dealing with Kazarian’s explanation 

that the surface area-to-weight ratio differences between adults and 

children would have made it unusual to see an adult and a child

receive the same dosage. In fact, the district court actually sustained a defense objection preventing Kazarian from “getting into 

the minutia of efficacy and the dangers to an 11-year-old girl from 

having certain creams with steroids.” Each time the defense’s objection was overruled, the district court did so to allow Kazarian to 

testify that a substantial similarity in dosage between patients of 

different ages would have been unusual based on the general 

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principle that differently situated patients have different medical 

needs. Because Kazarian never discussed the specific “quality or 

usefulness” of the medications that Atlantic sold, his testimony on 

red flags was not improperly admitted. 

Although Tonge and Francois do challenge other elements 

of Kazarian’s testimony, in the absence of a contemporaneous objection we review the remainder of that testimony only for plain 

error. Id. at 1268 n.21. Nothing about what was left of Kazarian’s 

testimony, which explained the concept of red flags and applied it 

to the facts of Atlantic’s CPC business, was plainly outside the government’s expert notice As such, the district court did not err in 

admitting that testimony.

2. Francois’s Prior Arrest

Francois separately argues that the district court abused its 

discretion in admitting a stipulation between Francois and the government concerning a prior arrest. He claims that the evidence was 

inadmissible under Federal Rule of Evidence 404(b), but the government argues that any error was invited by stipulation and that 

the evidence was admissible to prove Francois’s knowledge and 

lack of mistake. 

Assuming for the sake of argument that Francois did not invite the error, we cannot say the district court abused its discretion 

in admitting Francois’s prior misrepresentation to an insurance network about his arrest record. This evidence pertained directly to 

Francois’s knowledge and lack of mistake when he made similar 

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misrepresentations to the government. FED R. EVID. 404(b)(2);

United States v. Delgado, 56 F.3d 1357, 1366 (11th Cir. 1995). The 

government had to prove that Francois’s misrepresentations were 

knowing and willful rather than the result of simple mistake or 

poor management. See 18 U.S.C. § 1347; United States v. Medina, 

485 F.3d 1291, 1297 (11th Cir. 2007). And the government sought 

to argue that Francois acted knowingly because he had made similar misrepresentations before and had been terminated because of 

it. The district court did not abuse its discretion in weighing the 

probative value of this evidence against its potential prejudice.

C. Prosecutorial Misconduct

Francois next argues that the district court plainly erred 

when it declined to sua sponte find prosecutorial misconduct over 

the course of the trial, claiming that misconduct took two forms: 

(1) various remarks by the prosecution regarding Francois’s real estate purchases, nickname at Atlantic Pharmacy, and communications with his wife about his work at Atlantic; and (2) government 

intimidation of Jason Perlman, an attorney for one of Atlantic’s 

marketers. As Francois did not object to the challenged remarks as 

misconduct at trial, we review only for plain error. United States v. 

Goldstein, 989 F.3d 1178, 1199 (11th Cir. 2021). On plain error review, we will only reverse “when prosecutorial misconduct was so 

pronounced and persistent that it permeated the entire atmosphere 

of the trial.” United States v. Mueller, 74 F.3d 1152, 1157 (11th Cir. 

1996). Because none of the challenged remarks were misconduct 

and the district court properly addressed Francois’s witness 

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intimidation allegations, we conclude that the district court did not 

plainly err.

1. Prosecutorial Remarks

To establish prosecutorial misconduct, a defendant must 

show that the prosecution’s remarks were improper and that they 

prejudicially affected the defendant’s substantial rights. United 

States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009). “A defendant's 

substantial rights are prejudicially affected when a reasonable probability arises that, but for the remarks, the outcome of the trial 

would have been different. When the record contains sufficient independent evidence of guilt, any error is harmless.” Id.

Four factors guide our analysis of whether prosecutorial remarks had a reasonable probability of changing the outcome of a 

trial: “(1) the degree to which the challenged remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether 

they are isolated or extensive; (3) whether they were deliberately 

or accidentally placed before the jury; and (4) the strength of the 

competent proof to establish the guilt of the accused.” Davis v. 

Zant, 36 F.3d 1538, 1546 (11th Cir. 1994). When making this inquiry, we must consider “the context of the entire trial.” Lopez, 590 

F.3d at 1256. 

Here, Francois challenges the government’s references to 

the fact that he purchased a three-point-six million dollar home formerly owned by a celebrity, that his nickname at Atlantic was 

“POTUS,” and that he sent a confrontational text message to his 

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wife that discussed his work at Atlantic. None of these statements 

constituted misconduct because each concerned relevant evidence 

for the government’s case and did not prejudice Francois’s substantial rights. 

First, the government’s references were relevant. The prosecution told the jury in its opening statement that it would learn 

that “Francois lived like a celebrity. . . . spent $3.6 million to buy a 

home that used to be owned by Dwayne, ‘The Rock’ Johnson,” and 

“was called POTUS, for President of the United States.” On crossexamination of Francois, the government reemphasized these

facts. The prosecution also read a text message from Francois to his 

wife that stated in part: “I am here with four doctors that bring me 

money so go take your talk somewhere else.” Each remark was directly relevant to the criminal conduct that the government was 

required to prove beyond a reasonable doubt. The fact that Francois spent millions of dollars drawn from Atlantic’s accountsto purchase a home bore directly on Count Twenty-Seven (money laundering) and circumstantially on fraud. Similarly, Francois’s nickname being “POTUS” was directly relevant to his leadership role 

and knowledge of events occurring at the pharmacy, which were

essential to the prosecution’s allegations of fraudulent conduct and 

conspiracy. Likewise, Francois’s message to his wife was relevant 

to show that he had met directly with the doctors that generated 

Atlantic’s fraudulent CPC prescriptions. That meeting bore on 

Francois’s knowledge that the prescriptions Atlantic was filling, 

and thus the insurance claims that it was filing, were categorically 

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false, which we have held to be a required element of a healthcare 

fraud prosecution under Section 1347. Medina, 485 F.3d at 1297. 

Even if the prosecution’s remarks had been improper, they

would not have been reversible error because they did not prejudice Francois’s substantial rights. Francois testified on direct examination that his nickname was “POTUS” because he “used to snoop 

around with the cameras in the pharmacy.” Another Atlantic employee testified that Francois was nicknamed “POTUS” because he 

was Atlantic’s leader and that Francois bragged about purchasing a 

house “that the Rock used to live in.” And Francois had the opportunity to explain his version of the facts to the jury. Lastly, the government used Francois’s text messages with his wife to rebut his

earlier testimony that he had “left [the promotion of Atlantic’s 

CPCs to doctors and patients] all to the marketers.” On balance, 

three isolated remarks, largely cumulative of other properly admitted evidence, cannot be said to have “permeated the entire atmosphere” of a lengthy jury trial on plain error review. See Mueller, 74 

F.3d at 1157.

2. Witness Intimidation

Francois’s second argument for misconduct—witness intimidation—is also meritless. “Where defendants present evidence to 

the district court that the government intimidated a defense witness a trial court must grant a hearing to determine whether the 

allegations of intimidation are true.” United States v. Schlei, 122 

F.3d 944, 992 (11th Cir. 1997). Here, Francois made such allegations 

after Perlman retained counsel and informed Francois that he 

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would assert his Fifth Amendment privilege if called as a witness. 

The district court set an evidentiary hearing to address the issue, 

but Francois withdrew his allegations before the hearing occurred, 

stating that “[w]e are now withdrawing anything involving the 

Perlman issue” and “in terms of other issues with Mr. Perlman, including any allegations or anything, they are all withdrawn.” Because Francois produced no evidence, declined the district court’s 

scheduled evidentiary hearing, and expressly disclaimed any previous allegations, the district court did not err. See Schlei, 122 F.3d at 

991–92.

D. The Jury Instructions

Tonge and Francois argue that the district court erred by 

giving essentially the pattern jury instruction on healthcare fraud.

Specifically, the defendants contend that our recent decision in

United States v. Medina obligated the district court to accept a proposed modification to the pattern instruction inserting a requirement that the government prove that “the defendant[s] knew the 

claims, bills to TRICARE, identified in the indictment were, in fact, 

false or fraudulent.” See 485 F.3d 1291. We disagree.

“Reviewed for abuse of discretion, failure to give a requested 

instruction is reversible only where the instruction (1) was correct, 

(2) was not substantially covered by a charge actually given, and (3) 

dealt with some point in the trial so important that failure to give 

the requested instruction seriously impaired the defendant’s ability 

to conduct his defense.” United States v. Dohan, 508 F.3d 989, 993 

(11th Cir. 2007). “We will not reverse a conviction based on a jury 

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instruction challenge unless we are left with a substantial and ineradicable doubt as to whether the jury was properly guided in its 

deliberations.” United States v. Clay, 832 F.3d 1259, 1310 (11th Cir. 

2016) (cleaned up). A conviction will stand “when the jury instructions, taken together, accurately express the law applicable to the 

case without confusing or prejudicing the jury . . . even though isolated clauses may, in fact, be confusing, technically imperfect, or 

otherwise subject to criticism.” Id. (cleaned up). And the Supreme 

Court has explained that “in reviewing jury instructions, our task 

is . . . to view the charge itself as part of the whole trial.” United 

States v. Park, 421 U.S. 658, 675 (1975). 

We believe the district court’s jury instruction accurately 

conveyed the requisite criminal state of mind under our healthcare 

fraud precedents. Although we have held that “in a health care 

fraud case, the defendant must be shown to have known that the 

claims submitted were, in fact, false,” our decision in Medina stands

only for the proposition that “on the facts of [that] case . . . paying 

kickbacks alone [was] not sufficient to establish health care fraud.”

Medina, 485 F.3d at 1297–98. That is, Medina required that the government prove a defendant’s knowledge of falsity but remained

largely silent as to the methods by which that knowledge could be 

proven. Here, the court’s instruction sufficiently informed the jury 

that it could convict only if it determined that Francois and Tonge 

knew that their statements were false. It said that the defendants 

had to act “knowingly and willfully” and “intend[] to defraud” by 

making “false or fraudulent” “representations . . . about a material 

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fact that the speaker knows is untrue or makes with reckless indifference as to the truth and makes with intend to defraud.” 

In United States v. Clay, we made explicit the implicit limitation in 

Medina, concluding that “although the government must prove 

the defendant’s knowledge of falsity, a defendant’s knowledge can 

be proven in more than one way.” Clay, 832 F.3d at 1311 (cleaned 

up). There, we held that a district court did not reversibly err by

giving a healthcare fraud instruction substantially identical to the 

pattern instruction. Id. The Clay instruction differed from the pattern only by replacing “reckless indifference” with “deliberate indifference,” a modification that neither Francois nor Tonge requested. The district court did not abuse its discretion in denying 

Tonge and Francois’s proposed modifications to the pattern jury 

instruction.

E. Jury Coercion

Next, Tonge and Francois argue that their jury was coerced

by an impending natural disaster. Both defendants argue that the 

district court plainly erred by allowing the jury to deliberate as

Hurricane Irma approached Miami. The court did not. It allowed

the jury to continue deliberating in the face of a projected severe 

weather event that was several days away. But it did not rush the 

jury’s verdict, instruct the jury that they had to return a verdict before the hurricane landed, or otherwise coerce a verdict.

Tonge and Francois argue that our decision in Lucas v. 

American Manufacturing Co., 630 F.2d 291 (5th Cir. 1980), 

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supports their position. We disagree. In Lucas, a jury began deliberating with a hurricane expected to impact the courthouse within 

the hour, and the judge instructed the jury that its deliberations 

could last no longer than 15 minutes. Unsurprisingly, the jury 

quickly returned with an incomprehensible split verdict. In remanding for a new trial, we explained that “[t]he imminence of [a] 

hurricane might . . . require[] that the jury be sent home” but held 

that “concern for the jurors’ well-being . . . does not excuse . . .

efforts to coerce a verdict.” Id. at 293.

Tonge and Francois’s case is readily distinguishable. First,

unlike in Lucas, the jury had plenty of time to deliberate. Hurricane 

Irma struck Miami several days after the verdict and more than a 

week after the start of deliberations, whereasthe hurricane’s arrival

in Lucas was imminent and left the jury with about forty-five 

minutes for deliberations. Second, unlike in Lucas, the district 

court did not charge the jury to rush to a verdict to avoid the hurricane. Third, Tonge and Francois’s convictions lack the anomalies

we identified as indicia of coercion in Lucas. Id. at 293. Although

the defendants were convicted of some charges and acquitted of 

others, there is no reason to believe that the court “pressure[ed] a 

minority of the jurors to sacrifice their conscientious scruples for 

the sake of reaching agreement.” Green v. United States, 309 F.2d 

852, 854 (5th Cir. 1962). Finally, although Tonge and Francois argue that the mere act of allowing the jury to deliberate was per se

coercion, there is nothing inherently coercive about allowing a jury 

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to begin deliberations at the close of a trial or to continue deliberations that had begun a week before.

F. Sufficiency of the Evidence

Lastly, both Tonge and Francois argue that the district court 

erred by declining to grant a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29 based on the insufficiency of the evidence. Because the government presented overwhelming evidence that both defendants were knowing and willful 

participants in a complex scheme to defraud federal insurance programs by paying healthcare kickbacks, we disagree.

As an initial matter, Tonge and Francois have waived sufficiency arguments regarding several counts of their convictions. 

Although Tonge correctly notes that his Rule 29 motion covered

every count, his briefing completely ignores many of those counts, 

instead focusing only on whether there was sufficient evidence to 

convict on Counts One and Three through Thirteen. We have consistently held that an appellant abandons an argument when his

briefing merely references the argument in passing and contains no 

substantive discussion of the issue. Zhou Hua Zhu v. U.S. Att’y 

Gen., 703 F.3d 1303, 1316 n.3 (11th Cir. 2013); Sapuppo v. Allstate 

Floridian Ins. Co., 739 F.3d 678, 681–83 (11th Cir. 2014). By presenting argument on sufficiency only as to certain counts, Tonge 

has abandoned any sufficiency challenges to all others. The same 

result obtains to Francois, who only argues that there was insufficient evidence to convict on Counts One through Nineteen. On 

review of the properly challenged counts, we conclude that the 

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government presented evidence more than sufficient to allow a 

reasonable jury to convict.

To support a conviction under the healthcare fraud statute, 

the government must prove that a defendant “knowingly and willfully execute[d] . . . a scheme or artifice . . . (1) to defraud any health 

care benefit program; or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or 

property owned by, or under the custody or control of, any health 

care benefit program, in connection with the delivery of or payment for health care benefits, items, or services.” 18 U.S.C. § 1347. 

We have explained that “in a health care fraud case, the defendant 

must be shown to have known that the claims submitted were, in 

fact, false.” Medina, 485 F.3d at 1297. 

To convict the defendants of paying healthcare kickbacks,

the government had to prove that they “knowingly and willfully 

offer[ed] or pa[id] any remuneration (including any kickback, bribe, 

or rebate) directly or indirectly, overtly or covertly, in case or in 

kind to any person to induce such person . . . to refer an individual 

to a person for the furnishing or arranging for the furnishing of any 

item or service for which payment may be made in whole or in part 

under a Federal healthcare program.” 42 U.S.C. § 1320a7b(b)(2)(A). “Willful conduct under the Anti-Kickback statute 

means that the act was committed voluntarily and purposely, with 

the specific intent to do something the law forbids, that is with a 

bad purpose, either to disobey or disregard the law.” United States 

v. Nerey, 877 F.3d 956, 969 (11th Cir. 2017) (explaining that

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“attempts to hide . . . illegal kickbacks” were evidence of willfulness). But a defendant “need not have known that a specific referral 

arrangement violated the law” to be properly convicted. United 

States v. Sosa, 777 F.3d 1279, 1293 (11th Cir. 2015).

To support a conviction for conspiracy, the government had 

to prove: “(1) that a conspiracy existed; (2) that the defendant knew 

of it; and (3) that the defendant, with knowledge, voluntarily joined 

it.” United States v. Vernon, 723 F.3d 1234, 1273 (11th Cir. 2013). 

Circumstantial evidence alone can prove agreement, including 

“where the circumstances surrounding a person’s presence at the 

scene of conspiratorial activity are so obvious that knowledge of its 

character can fairly be attributed to him” and the defendant commits acts in furtherance of the conspiracy. Id. at 1273–74.

The government’s theory of Counts One through Nineteen

was that Atlantic stole millions of dollars from TRICARE and the 

FEHBP by knowingly and willfully conspiring to pay illegal kickbacks and submit fraudulent insurance claims. Each claim to

TRICARE or the FEHBP had to satisfy three requirements: (1) the 

claim had to come from an in-network pharmacy; (2) the beneficiary had to be charged a co-payment; and (3) the underlying prescription had to be valid, meaning that the prescribing physician 

must have examined the patient, the prescription must have been

medically necessary, and the patient must have received the prescription in a state where the pharmacy was licensed to do business. 

Although none of Atlantic’s CPC claims satisfied these requirements, Francois and Tonge’s misrepresentations enabled it to 

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collect over thirty-one million dollars in claims based on fraudulent 

prescriptions.

First, the prosecution produced evidence that Atlantic was 

admitted to Express Scripts’s network and received a DEA registration solely based on Francois’s misrepresentations about himself 

and his pharmacy. Were those misrepresentations never made, Atlantic would have been foreclosed from filing a single fraudulent 

CPC claim. Francois told the government that his sister owned Atlantic, that his DEA license had never been suspended, that he had 

never filed for bankruptcy or been arrested, and that Atlantic had 

never paid more than $25,000 to a subcontractor. Every one of 

these representations was false. In fact, Francois owned Atlantic, 

his DEA license had been suspended, he had previously been arrested and filed for bankruptcy, and Atlantic had paid millions of 

dollars to subcontractors as part of its efforts to market its products. 

Francois knew that these misrepresentations were material because he had previously been terminated by Humana after it discovered evidence of the same misrepresentations underlying its relationship with Atlantic. Humana’s termination letter described

Francois’s lies in excruciating detail, yet Francois repeated them to

the DEA and Express Scripts in order to gain access to TRICARE 

and the FEHBP. 

Second, the jury was presented sufficient evidence to conclude that Tonge and Francois knew the prescriptions underlying 

Atlantic’s CPC claims were invalid and the fruit of a complex system of healthcare kickbacks. Atlantic’s CPC business relied on

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marketing contracts that exchanged kickbacks for fraudulent prescriptions. The jury could find that Tonge and Francois knew about 

those contracts because their co-conspirators testified extensively 

that both men negotiated them and were intimately involved in 

their performance. See United States v. Broadwell, 870 F.2d 594, 

601 (11th Cir. 1989) (“Testimony of a co-conspirator, even if uncorroborated, is sufficient to support a conviction.”). Tonge changed 

the chemical formula of the CPCs that Atlantic asked PGRX to prescribe to maximize profits, modified PGRX prescriptions after they 

were delivered, and sent PGRX pre-filled prescriptions for its doctors to sign and return. Tonge asked Mark Messenger, one of

PGRX’s doctors, to leave the company and work directly for Atlantic, promising an improved kickback as an incentive. He also encouraged Messenger to bring his colleagues with him in exchange 

for even more money. Meanwhile, Francois knew that at least 

some of DIRIV’s prescriptions were fraudulent because a doctor

personally called to explain that an assistant had forged his signature. Yet Francois continued to do business with DIRIV and fill 

forged prescriptions from the same physician’s office. During negotiations with RX, Tonge stated that Atlantic would not pay more 

than forty percent in kickbacks, even for a “high volume” marketer 

that promised that its business was “all TRICARE.” Everyone involved in the RX negotiations understood that the arrangement relied on the Simsirs having “a doctor who would write just about 

anything.” Once the fruit of these negotiations—hundreds of fraudulent CPC prescriptions—arrived at the pharmacy, Tonge processed them and submitted claims to Express Scripts despite lacking 

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the required pharmaceutical training. And after Express Scripts approved a claim, Francois certified the prescriptions and Atlantic improperly dispensed the CPCs, oftentimes by mailing medications 

to states where it was not licensed to do business. 

Throughout their time at Atlantic, Tonge and Francois took 

numerous steps to minimize their losses and conceal their fraud.

Atlantic implemented a policy to convince troubled patients that

they should keep the medications Atlantic had sent them by waiving mandatory co-payments. Tonge knew that this practice was illegal and made a written record memorializing that knowledge but

participated in the scheme regardless. Sonsoles Simsir testified that 

Francois requested that RX pay kickbacks in cash, and another coconspirator testified to repeated conversations where he was admonished to stop a doctor from publicly saying that Atlantic owed 

him money. Later, Francois would lie to investigators in an effort 

to prevent evidence from being collected, work with Tonge to ask 

the Simsirs to destroy evidence outside of Atlantic’s direct control, 

and demand that Lee lie to protect him. At the same time, Tonge 

was deleting emails from an account that he used to conduct pharmacy business.

Despite the defendants’ attempts at concealment, the fraud 

at Atlantic was open and obvious. Multiple employees understood 

that something was rotten in South Florida, and at least one pharmacist quit rather than be party to what he viewed as obviously

criminal conduct. Throughout, Francois led the pharmacy as if this 

was business as usual, including making the decision to certify CPC 

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prescriptions as valid that a former employee had refused to sign 

off on. At trial, Kazarian explained that the whole of Atlantic’s CPC 

business was one giant red flag, such that any reasonable pharmacist would have assumed that the prescriptions were invalid and 

that someone was being paid. Francois, the owner and pharmacistin-charge, saw all of this and knew exactly what it meant, admitting

that Atlantic’s CPC business was “all show.” See Sosa, 777 F.3d at 

1293 (explaining that “the giving or taking of kickbacks for medical 

referrals is hardly the sort of activity a person might expect to be 

legal”); Vernon, 723 F.3d at 1267 (stating that the jury “could have 

inferred that [the defendant’s] position as CEO of Medfusion required that he familiarize himself with significant statutes regulating the pharmaceutical industry, including the Anti–Kickback statute”) And finally, Francois testified that he did not know that the 

claims were false or that Atlantic was paying kickbacks. The jury 

was within its rights to disbelieve his testimony as to both assertions. See United States v. Mateos, 623 F.3d 1350, 1362 (11th Cir. 

2010) (explaining that “a defendant who chooses to testify runs the 

risk that the jury will disbelieve her testimony, and runs the risk 

that if disbelieved the jury might conclude the opposite of her testimony is true”) (cleaned up).

We conclude that the jury received sufficient evidence to 

convict Tonge and Francois on each of the challenged counts.

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IV. Conclusion 

For the foregoing reasons, Tonge and Francois’s convictions 

and sentences are AFFIRMED.

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