IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30390

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

SANDRA PARKMAN THOMPSON, 

 Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CR-243-2

Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM:*

Sandra Parkman Thompson appeals her convictions for conspiracy, 

health care fraud, and receipt of health care kickbacks. She was convicted by 

a jury in the Eastern District of Louisiana as a result of her participation in a 

health care fraud scheme at Psalms 23, a durable medical equipment (“DME”)

company, where she worked as a medical marketer. On appeal, Thompson 

argues that there was insufficient evidence to sustain her convictions and that 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 13, 2019

Lyle W. Cayce

Clerk

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the district court abused its discretion by failing to provide the jury with 

Thompson’s proposed theory of the defense. We affirm.

I.

Thompson worked as a medical marketer for Psalms 23 Durable Medical 

Equipment, a DME supply company in New Orleans owned by Tracy Brown.

Medicare covers certain DME, which is equipment designed for a medical 

purpose for repeated use such as power wheelchairs (“PWCs”) and accessories, 

orthotics, walkers, and commodes. For a beneficiary to be eligible for DME 

under Medicare, a physician is required to examine the patient and determine 

that the DME is medically necessary. The Medicare supplier manual sets out 

the requirements for a determination of medical necessity for various DME—

for example, Medicare covers PWCs when a patient would be bed- or chairconfined without the wheelchair, is unable to operate a wheelchair manually, 

and is capable of operating the controls of the power wheelchair. In order for 

Medicare to pay a claim to a DME supplier, the beneficiary needs a physician’s 

order for the specific piece of equipment and the physician’s progress notes 

showing the diagnosis. The patient then takes the order to any DME supplier, 

who determines the sizing of the DME and, if applicable, goes to the patient’s 

home to verify that the equipment is compatible. To be eligible for Medicare 

reimbursement, a DME supplier is required to enroll in the Medicare program 

and agree to follow Medicare rules. Among other prohibitions, the Medicare 

rules prevent DME suppliers from accepting kickbacks, or payment for making 

a referral for DME, and prevent routine waivers of copayments.

Fraud investigators working on behalf of Medicare started investigating 

Psalms 23 after receiving a fraud alert from Medicare stating that suppliers 

were billing for the same patients to receive “arthritis kits,” an item which 

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Medicare does not cover, and PWCs.1 The fraud investigator referred the case 

to the Office of Inspector General, detailing the problems with the 

reimbursement documentation submitted by Psalms 23, including the fact that 

the documentation submitted was on Psalms 23 letterhead,2 Psalms 23 did not 

provide some of the DME for which it sought reimbursement, and many 

patients did not have progress notes showing diagnosis or treatment that 

would correspond to DME received.

As a medical marketer, it was Thompson’s job to identify patients for 

potential referral for DME who were covered under Medicare.3 In an interview 

with FBI Special Agent Steed,4 Thompson described her referrals of Medicare 

beneficiaries, primarily to Dr. Anthony Jase, for PWCs and arthritis kits: she 

referred family members and those she recruited at community health fairs;

wore a lab coat or scrubs to attract people who may have medical needs; and 

targeted a 55-and-older high-rise, where she had a contact who would give her 

information about new residents in exchange for beer. Dr. Jase testified that 

Thompson would refer patients to him, telling him that the patients had been 

displaced by Hurricane Katrina, had lost their DME in the displacement, and 

had been disconnected from their doctors. Thompson asked Dr. Jase to write 

prescriptions for replacement DME for the patients and Dr. Jase would write 

 

1 Twilla Bacon, the investigator, testified that the arthritis kits were a “red flag”

because all of the patients were given braces for both arms, both legs, a back brace, and a 

heating pad which Bacon testified was not a normal order from other suppliers. She testified 

that it was a red flag for a patient who was prescribed an arthritis kit to be given a PWC 

because it would be unusual to see braces on both arms and legs along with the use of a power 

wheelchair.

2 Bacon testified that forms completed by the doctor would not normally be on supplier 

letterhead. She stated that “every single form was on a Psalms 23 . . . generated form.”

3 In her interview with FBI Special Agent Steed, Thompson described those patients 

as those with a “red, white, and blue card.”

4 Special Agent Steed described the tone of the interview as “very cordial, very 

friendly, non-confrontational.” 

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a prescription without having seen or examined the patients.5 Dr. Jase would 

sign the order forms prescribing DME and “face-to-face” forms that were 

supposed to be filled out contemporaneously with seeing a patient. He testified 

that he never filled out any part of the form other than the signature line. Dr. 

Jase also stated that Thompson was the only medical marketer he worked with 

from Psalms 23. Thompson was paid $500 for every patient who received a 

PWC and $300 for every patient who received an arthritis kit.

In a June 2010 phone call recorded by the government, Dr. Jase called 

Thompson and informed her that he had spoken to federal agents about signing 

prescriptions for DME to be supplied by Psalms 23 and another DME company, 

Lobdale Medical Services, LLC (“Lobdale”). During that call Thompson 

discussed giving blank order sheets to Dr. Jase to sign and agreed that they 

would “be on the same page.”6

In 2010, Thompson was indicted in the Middle District of Louisiana for 

a separate conspiracy arising out of her work as a medical marketer for 

Lobdale.7 The course of conduct in the Lobdale case was almost identical to the 

instant conspiracy: Thompson participated in a scheme through which Lobdale 

charged Medicare for durable medical equipment that beneficiaries did not 

need or did not receive.8 Thompson received a commission for recruiting 

individuals to receive equipment and used false information about the 

 

5 Dr. Jase testified that he never saw any of the patients referred by Thompson for the 

purpose of prescribing DME. 

6 Thompson told Dr. Jase: “We going to be on the same page but let me tell you this. I 

want, I want you to hear this clear. There ain’t no way that I’m gonna let you go down for 

nothing. I’m not fixing to let you go down on no lie. I’m not fixing to let you go down—if I got 

to go to jail you ain’t going down on nothing.”

7 United States v. Thompson, 569 F. App’x 316 (5th Cir. 2014) (per curiam) (affirming 

Thompson’s conviction).

8 Id.

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beneficiaries to obtain prescriptions and orders for medical equipment from Dr. 

Jase.9

While serving her sentence for her conviction in the Lobdale case, 

Thompson was indicted in the instant case. On November 1, 2013, a grand jury 

returned an indictment charging Thompson with one count of conspiracy to 

commit health care fraud, in violation of 18 U.S.C. § 1349 (Count 1); one count 

of conspiracy to pay and receive health care kickbacks, in violation of 18 U.S.C. 

§ 371 (Count 2); five counts of health care fraud, in violation of 18 U.S.C. 

§ 1347 and 18 U.S.C. § 2 (Counts 3–7), and five counts of receipt of health care 

kickbacks, in violation of 42 U.S.C. § 1320a-7(b)(1)(A) and (2)(A) (Counts 13–

18).10 

The case proceeded to trial and Thompson made motions for acquittal at 

the close of the government’s case and after the close of the defense case which 

were denied. On November 7, 2017, a jury convicted Thompson of both 

conspiracy counts (Counts 1–2), two counts of health care fraud (Counts 3–4) 

and five counts of receipt of health care kickbacks (Counts 13–18). Thompson 

was acquitted on three counts of health care fraud (Counts 5–7). Thompson 

filed a post-trial motion for judgment of acquittal which the district court 

denied. Thompson was sentenced to 32 months’ imprisonment. This appeal 

followed.

II.

Thompson contends that the evidence was legally insufficient to support 

her convictions for conspiracy, health care fraud, or receipt of kickbacks. We 

 

9 Id.

10 Thompson was indicted with her alleged co-conspirator, Tracy Brown. Prior to trial, 

Thompson moved to dismiss the indictment on double jeopardy grounds, arguing that her 

indictment in this case charged the same offenses of which she had been convicted in the 

Lobdale case. The district court denied that motion and this court affirmed. United States v. 

Thompson, 690 F. App’x 244 (5th Cir. 2017) (per curiam).

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review challenges to the sufficiency of evidence de novo, asking whether a 

rational jury could find that all the elements of the crime were proved beyond 

a reasonable doubt.11 In making that determination, “we view the evidence and 

all inferences to be drawn from it in the light most favorable to the verdict.”12

While “[a] conviction may not rest on ‘mere suspicion, speculation, or 

conjecture, or on an overly attenuated piling of inference on inference,’”13 the 

conviction will be affirmed “if ‘any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.’”14

A.

Thompson first challenges the sufficiency of the government’s evidence 

of conspiracy. Relying on this court’s recent decision in United States v. Ganji,15

Thompson contends that the government’s evidence of conspiracy was 

insufficient because none of the witnesses acted with Thompson to commit the 

charged conduct and therefore could not provide direct evidence of Thompson’s 

conduct. She emphasizes that the only witness who dealt with Thompson 

directly was Dr. Jase, whose testimony Thompson suggests actually 

corroborates the defense theory that Thompson did not know Dr. Jase was 

planning to prescribe DME without meeting patients.

To support a conviction for conspiracy under 18 U.S.C. § 1349, the 

government must prove beyond a reasonable doubt that “(1) two or more 

persons made an agreement to commit health care fraud; (2) that the 

defendant knew the unlawful purpose of the agreement; and (3) that the 

 

11 United States v. Chapman, 851 F.3d 363, 376 (5th Cir. 2017) (citing United States 

v. Wise, 221 F.3d 140, 147, 154 (5th Cir. 2000)).

12 United States v. Jones, 873 F.3d 482, 489 (5th Cir. 2017) (quoting United States v. 

Delgado, 401 F.3d 290, 296 (5th Cir. 2005)).

13 United States v. Gonzalez, 907 F.3d 869, 873 (5th Cir. 2018) (per curiam) (quoting 

United States v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011)).

14 Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

15 880 F.3d 760 (5th Cir. 2018).

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defendant joined in the agreement . . . with the intent to further the unlawful 

purpose.”16 The government can prove the existence of any element through 

circumstantial evidence,17 but “proof of an agreement to enter a conspiracy is 

not to be lightly inferred.”18 To support a conviction of conspiracy under 18 

U.S.C. § 371, the government must prove beyond a reasonable doubt “(1) an 

agreement between two or more persons to pursue an unlawful objective; (2) 

the defendant's knowledge of the unlawful objective and voluntary agreement 

to join the conspiracy; and (3) an overt act by one or more of the members of 

the conspiracy in furtherance of the objective of the conspiracy.”19

In Ganji, the owner of a home health agency and one of its medical 

directors were charged and convicted with conspiracy to commit health care 

fraud and health care fraud for participation in a scheme in which agency 

employees were provided incentives to recruit Medicare beneficiaries.20 This 

court reversed the convictions.21 The government had attempted to prove 

conspiracy by demonstrating concerted action between the alleged 

conspirators.22 However, while the cooperating witnesses themselves admitted 

to fraudulently certifying patients for home health care, the government 

witnesses testified that they did not even know one of the defendants and the 

government had attempted to ascribe the owner of the agency with knowledge 

of the agreement by sole virtue of her position in the company.23 While the 

 

16 Ganji, 880 F.3d at 767 (quoting United Staets v. Eghobor, 812 F.3d 352, 362 (5th 

Cir. 2015) (internal quotation marks omitted)).

17 United States v. Willett, 751 F.3d 335, 339 (5th Cir. 2014).

18 Ganji, 880 F.3d at 768 (quoting United States v. Johnson, 439 F.2d 885, 888 (5th

Cir. 1971) (internal quotation marks and alterations omitted)).

19 United States v. Mauskar, 557 F.3d 219, 229 (5th Cir. 2009) (quoting United States 

v. Williams, 507 F.3d 950, 910 n.4 (5th Cir. 2007)).

20 Ganji, 880 F.3d at 763–64.

21 Id. at 763.

22 Id. at 768.

23 Id. at 770, 776.

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government can prove that an agreement existed through evidence of the 

conspirators’ concerted actions, “[t]he actions and the surrounding 

circumstances must be incriminating enough to warrant a finding that the 

Government proved the existence of an agreement beyond a reasonable 

doubt.”24 In Ganji, the government’s “concerted action” evidence was 

insufficient because the doctors and nurses who testified “spoke of their own 

fraudulent actions, but never testified that they agreed with [the defendants] 

to carry out these activities.”25 So while there was evidence of a conspiracy, the 

government presented no evidence implicating the defendants in that 

conspiracy and there was not sufficient evidence to allow a rational juror to 

infer that either defendant had agreed to participate in a conspiracy.26

The evidence here is different. Dr. Jase testified that Thompson 

convinced him to sign DME orders by telling him the beneficiaries’ equipment 

was lost in Hurricane Katrina. In her interview with Special Agent Steed, 

Thompson stated that she had received referral fees for recruiting PWC and 

arthritis kit patients and collected DME orders that had Dr. Jase’s signature 

but no patient information. In a recorded phone call with Dr. Jase, Thompson 

admitted to letting prospective patients pick DME from a catalog without the 

assistance or supervision of a doctor. In her own testimony, Thompson stated 

that she would not get paid by Tracy Brown until Dr. Jase signed the approval 

form for the patient to get the DME. The government also introduced evidence 

about patients who were referred for DME by Thompson who did not need the 

equipment and were never examined by Dr. Jase. Dr. Jase testified that he had 

never seen any of the patients referred by Thompson for the purpose of 

 

24 Id. at 767–68 (“Concerted action between the conspirators illustrates that an 

agreement had to exist because the individuals would not have otherwise acted in that 

particular manner.”).

25 Id. at 770. 26 Id. at 777.

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describing DME. When viewing the evidence in the light most favorable to the 

prosecution, the evidence is sufficient for a rational jury to determine that the 

government proved beyond a reasonable doubt that Thompson participated in 

the conspiracy.27

B.

Thompson also contends that the evidence adduced at trial was 

insufficient to support her convictions under the Anti-Kickback statute. 

Thompson primarily challenges the referral forms—she argues that the 

government did not make an effort to identify her handwriting on the forms 

and that there was insufficient evidence for the jury to infer that Thompson 

had filled out the forms.

The Anti-Kickback Statute prohibits receipt or solicitation of 

commissions in exchange for referring a Medicare patient to a Medicare 

provider.28 To prove a violation of the Anti-Kickback statute’s prohibition on 

soliciting or receiving remuneration for referrals to a federal health care 

program, the government must prove: 

(1) the defendant solicited or received any remuneration, including 

any kickback or bribe, directly or indirectly, overtly or covertly, in 

cash or in kind, to any person; (2) that the remuneration was 

solicited or received to induce such person to refer an individual to 

a person for furnishing or arranging of an item or service; (3) that 

the item or service was one for which payment may be made in 

whole or in part under a federal health care program; and (4) that 

the defendant acted knowingly and willfully.29

With respect to the knowledge element, the government need not prove that

the defendant had “actual knowledge of [the statute] or specific intent to 

 

27 United States v. Bowen, 818 F.3d 179, 186 (5th Cir. 2016) (quoting United States v. 

Roetcisoender, 792 F.3d 547, 550 (5th Cir. 2015)).

28 42 U.S.C. § 1320a-7b(b)(1)(A).

29 United States v. St. Junius, 739 F.3d 193, 210 n.18 (5th Cir. 2013) (citing § 1320a7b(b)(1)(A)).

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commit a violation of [the statute],”30 but rather that the defendant “willfully 

committed an act that violated the statute.”31

Thompson was convicted of receiving kickbacks for referrals of five 

patients, all of whom had DME prescriptions from Dr. Jase. Dr. Jase testified 

that he had not examined any of the patients for the purpose of prescribing 

DME, that his signature was on the prescriptions, and that Thompson was the 

only Psalms 23 employee he worked with. Dr. Jase also acknowledged that he 

never filled out any part of the referral form other than the signature line. 

Psalms 23 employee Patrice Williams confirmed that all of the referrals that 

Thompson made to Psalms 23 were from Dr. Jase. Special Agent Bradford 

testified about the link between the number of prescriptions for DME signed 

by Dr. Jase for arthritis kits and PWCs and the total amount of referral fees 

received by Thompson by Psalms 23.32 There was also testimony by Special 

Agent Bradford about the dates listed in Thompson’s referral file for each 

patient, the dates that Medicare was billed for each patient’s DME, and the 

dates on the Psalms 23 checks to Thompson. Taken together, there is sufficient 

evidence to sustain Thompson’s kickback convictions.

C.

In her final sufficiency challenge, Thompson asserts that there was 

insufficient evidence to prove that she had the requisite criminal intent to 

commit health care fraud or receive kickbacks. Thompson emphasizes the 

testimony of the health care fraud investigator, Twilla Bacon, who 

acknowledged that she may not expect a medical marketer to have full 

 

30 42 U.S.C. § 1320a-7b(h).

31 St. Junius, 739 F.3d at 210.

32 Dr. Jase prescribed 56 PWCs and 66 arthritis kits; Thompson received a commission 

of $500 for every PWC and $300 for each arthritis kit. The amount that she would have been 

paid for a referral fee for each Dr. Jase prescription is within $1,000 of the amount she 

received from Psalms 23 ($48,700). 

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knowledge of the health care rules and regulations. She also points to Special 

Agent Steed’s description of her demeanor during her interview as cordial and 

non-confrontational as evidence that she had no intent to defraud Medicare.

Thompson likens her case to United States v. Rufai, where the Tenth 

Circuit reversed convictions for aiding and abetting health care fraud, holding 

that there was insufficient proof of knowledge and intent.33 In Rufai, the 

defendant had been acquitted on the charge of conspiracy to commit health 

care fraud and convicted of five counts of aiding and abetting health care 

fraud.34 In reversing the aiding and abetting convictions for insufficient proof 

of the defendant’s knowing and willful participation in the fraud, the court 

noted that the government had tried to prove the defendant’s knowledge 

through his association with his business partner who perpetrated the fraud, 

resting on a series of inferences that amounted to “impermissible guilt by 

association.”35 The government had failed to prove that the defendant was 

exposed to any criminal activity or knew that any illegal activity was taking 

place—relying solely on his relationship with his partner.36

Thompson’s reliance on Rufai is unavailing. Here, there was evidence of 

Thompson’s repeated exposure to the fraud and evidence from which the jury 

could rationally infer that Thompson was a knowing participant in the fraud. 

There was testimony that Thompson drove patients who were fully ambulatory 

to Dr. Jase and that those patients were able to get in and out of her nonwheelchair accessible car, and that she then proceeded to refer them for PWCs. 

A rational jury could conclude that she knew she was referring patients who 

did not need DME. In her recorded conversation with Dr. Jase, Thompson 

 

33 732 F.3d 1175, 1195 (10th Cir. 2013).

34 Id. at 1178.

35 Id. at 1194.

36 Id. at 1192.

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denied receiving $48,000 in profits from her referrals and agreed with Dr. Jase

that they would be on the same page in giving a story to the government. While 

Thompson makes much of her purported belief that Dr. Jase was examining 

patients that she referred for DME, there was conflicting testimony37 and it is 

the province of the jury to “weigh any conflicting evidence and evaluate the 

credibility of witnesses.” 38 We conclude that there was sufficient evidence of 

Thompson’s willful and knowing participation in the scheme to sustain her 

convictions.

III.

Thompson also contends that the trial court erred in refusing to charge 

the jury on its theory of the defense. Thompson proposed a five-paragraph jury 

instruction that described Thompson’s “theory of defense.” Determining that 

the proposed instruction included a statement of contested facts and recited 

the closing statement that defense counsel had already given, the district court 

rejected Thompson’s proposal. Instead, the district court proposed an 

alternative instruction omitting the recitation of facts:

Ms. Sandra Parkman Thompson denies she conspired with anyone 

at Psalms 23 to knowingly violate any federal law. Nor did she 

knowingly join in any such conspiracy. As to all counts she 

contends she did not act with knowledge that her conduct was 

unlawful.

Thompson’s counsel rejected the court’s proposal, stating that he would argue 

his version to the jury and that he objected to the court’s more limited 

instruction.39

 

37 Dr. Jase testified that she dropped paperwork off for DME referrals knowing that 

he had not examined the patients. Thompson told Special Agent Steed in her interview that 

she brought patients to Dr. Jase’s office. 

38 United States v. Gibson, 875 F.3d 179, 185 (5th Cir. 2017) (quoting United States v. 

Grant, 683 F.3d 639, 642 (5th Cir. 2012)).

39 Counsel stated that the court’s proposal would be giving the jury “a shell or giving 

them a conclusion with nothing to back it up.”

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We review a district court’s refusal to include a requested jury 

instruction for an abuse of discretion and the district court is afforded 

“substantial latitude” in formulating jury instructions.40 We ask “whether the 

court’s charge, as a whole, is a correct statement of the law and whether it 

clearly instructs jurors as to the principles of the law applicable to the factual 

issues confronting them.”41

It was well within the district court’s discretion to decline to give 

Thompson’s proposed instruction. Examining the charge “in the full context of 

trial including the final arguments of counsel”—as we must—it is clear that 

Thompson’s contention that she was unaware that her actions were criminal 

was “fully and completely developed for the jury.”42 “A central purpose of the 

charge is to provide the framework for the argument by counsel.”43 The district 

court’s instructions did just that: the jury was instructed on each of the crimes 

charged, including the requirement that the government prove that Thompson 

acted knowingly and willfully.44 This court has upheld a district court’s refusal 

to include a “good faith” instruction to the jury where the defense is 

“substantially covered by the charge given and the defendant has had the 

 

40 United States v. Daniels, 247 F.3d 598, 601 (5th Cir. 2001) (quoting United States 

v. Rochester, 898 F.2d 971, 978 (5th Cir. 1990)).

41 United States v. Kay, 513 F.3d 432, 446 (5th Cir. 2007) (internal citation omitted).

42 United States v. Fooladi, 746 F.2d 1027, 1030 (5th Cir. 1984) (citing United States 

v. Bush, 599 F.2d 72, 78 (5th Cir. 1979)). During his closing argument, Thompson’s counsel 

stated: “But in any event, the point of the matter is that—the judge is going to tell you that 

just because someone like Sandie is mistaken, mistaken about whether what she’s doing is 

criminal, doesn’t make it criminal. I’ll say it again. The judge is going to tell you, as the 

arbiter of the law, he will instruct you, which you promised to follow those rules, that a 

mistake is not the equivalent of guilty. If you make a mistake but you don’t know that you 

made a mistake about something being legal or not legal, it’s not criminal.” 

43 Id. 44 The court gave the pattern jury instruction definitions of “knowingly” (“the act was 

done voluntarily and intentionally, not because of mistake or accident”) and “willfully” (“the 

act was committed voluntarily and purposely with the specific intent to do something that 

the law forbids; that is to say, with a bad purpose either to disobey or disregard the law”). 

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opportunity to argue good faith to the jury.”45 Where the defendant has 

presented testimony or evidence that she did not intend to commit the charged 

crime and the jury is instructed on the law of specific intent, a charge 

sufficiently covers a good-faith defense and the district court does not abuse its 

discretion in rejecting the defendant’s more specific proposed good-faith 

instruction.46 “[A] defendant is not entitled to a ‘judicial narrative of his version 

of the facts’” and this court has repeatedly rejected requested instructions that 

are “more in the nature of a jury argument than a charge” where the 

instructions as given adequately cover the theory of the defense.47

While Thompson’s counsel capably articulated cogent reasons why a trial 

judge may choose to exercise its discretion to include a defendant’s requested 

jury instruction—particularly where jurors are provided with a copy of the 

indictment—it is not required under existing precedent. The district court did 

not abuse its discretion here. 

IV.

For the foregoing reasons, we affirm Thompson’s convictions.

 

45 United States v. Upton, 91 F.3d 677, 683 (5th Cir. 1996) (quoting United States v. 

Giraldi, 86 F.3d 1368, 1376 (5th Cir. 1996) (internal quotation marks omitted)).

46 Id. (holding that testimony by defendant and instruction on “knowingly” and 

“willfully” was sufficient); see also United States v. Brooks, 681 F.3d 678, 705 n.22 (5th Cir. 

2012) (“Here, the Defendants–Appellants were permitted to argue that they acted in good 

faith and had no intent to defraud, and the jury instructions accurately conveyed the specific 

intent required to both [charged crimes].”).

47 United States v. Lance, 853 F.2d 1177, 1184 (5th Cir. 1988) (quoting United States 

v. Barham, 595 F.2d 231, 244–45 (5th Cir. 1979)); see also United States v. Stone, 960 F.2d 

426, 433 (5th Cir. 1992) (“Because the elements of agreement and intent—as well as the legal 

defenses based on lack of agreement—were substantially covered in the charge given to the 

jury, a theory of the defense that merely recounted the facts without those elements was not 

required.”).

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