### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 10-20586

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. SYLVIA SMITH, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:09-CR-420-2

Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit Judges. PER CURIAM: * Sylvia Smith was convicted for s ubmitting false Medicare claims for Ensure-brand feeding formula. At trial, evidence showed that the claims were actually for Glucerna-brand formula. Smith argues this discrepancy between the evidence and the indictment was a constructive amendment requiring reversal of her conviction. We AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D June30 , 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 10-20586 Document: 00511526059 Page: 1 Date Filed: 06/30/2011No. 10-20586 STATEMENT OF FACTS Sylvia Smith was indicted on six counts of health care fraud, in violation of 18 U.S.C. §§ 1347 and 2, and an associated conspiracy count. Counts five and six charged Smith with submitting false Medicare claims for “Enriched Ensure and Feeding Kit[s]” f

o r two patients. Evidence at trial established that the Medicare claims Smith filed for these patients were actually for Glucerna, not Ensure. The two brands of feeding formula have slightly different formulas and separate Medicare billing codes. Glucer n a i s b illed at a slightly higher price. Otherwise, the brands are largely interchangeable. This discrepan c y w e nt unnoticed until jury deliberations, when the jury sent the following note: The jury has a question regarding

. . . specifically Counts 5 & 6. The ‘Description of Items Billed’ in both counts specifical ly mentions E nri c hed Ensure. After reviewing [the patients’] files, it comes to light that both patients were not provided En s u r e , but Glucerna. Does this difference affect the validity of both counts[?] Over Smith’s objection, the court responded, in part: It is not necessary . . . that the government prove all of the details alleged in the indictment concerning the precise nature of the alleged scheme. Wh at must be proven beyond a reasonable doubt is that the accused knowingly executed or attempted t o execute a scheme that was substantially similar to the scheme alleged in the indictment. Smith objected that the court’s instruction was a constructive amendment of the indictment. According to Smith, “The government charged Ensure. They need to prove Ensure.” The jury re t u r n e d a gu ilty verdict on all counts. A timely appeal followed. DISCUSSION Smith argues that allowing the jury to convict based on evidence showing false clai ms for Glucerna, when the indictment charged Ensure, was an impermissible amendment of the indictment

. Th is court reviews de novo

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whether there has been a constructive amendment. United States v. McMillan , 600 F.3d 434, 450 (5th Cir. 2010). “After an indictment has been returned, its charges may not be broadened through amendment except by the grand jury itself.” Id. (quotation marks, brackets, and citation omitted). Not all variations between allegation and proof, however, “rise to the level of a constructive amendment.” United States v. Millet , 123 F.3d 268, 272 (5th Cir. 1997). A constructive amendment occurs when it permits the defendant to be convicted u p o n a f actual basis that effectively modifies an essential element of the offense charged or permits the government to convict the defenda nt on a materially different theory or set of facts than that with which she was charged. McMillan , 600 F.3d at 451 (quotation marks and citation omitted). If a variance does not modify an essential element of the off e nse, it is evaluated for harmless error. United States v. Adams , 778 F.2d 1117, 1123 (5th Cir. 1985). According to that standard, a defendant must show that the variance in the language between the indictment and the jury charge severely prejudiced his defense. United States v. Scher , 601 F.3d 408, 411 (5th Cir. 201 0). The parties dispute whether Smith properly objected at trial. Regardless of the r evi e w s tandard, though, there was no constructive amendment. The “essential elements” required to prove health care fraud are that the defendant defrauded a health care benefit program or obtained money or property from a health care benefit program by means of false representation. See 18 U.S.C. § 1347. The government’s theory was that the Medicare claims were false because they listed treatments that w e r e not medically necessary or that were not actually provided to the patients. Substituting one brand of feeding formula for another did not require the government to adopt a different legal theory to prove any element of its case.

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There is no possibility that Smith was convicted of a crime separate from the one charged in the indictment, as th e evi d e n ce and the indictment both described the same act. In fact, the indictment contai n e d a “ m isdescription of the same identical [offense]” as the fraud described at trial, a dif f e r e n ce that does not rise to the level of a constructive amendment. U n i t ed States v. Chambers , 408 F.3d 237, 245 (5th Cir. 200 5). Smith has failed to establish that the min o r di screpancy between the indictment and evidence presented at trial severely prejudiced her defense. See Scher , 601 F.3d at 411. The indictment was sufficient to give her notice of the charges against her and the evid e n c e that supported those charges. See, e.g., United States v. Shah , 44 F.3d 285, 2 9 6 ( 5th Cir. 1995). Smith has not shown that the error in any way hampered her in preparing a defense. AFFIRMED.

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