IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 submitting 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.

United States Court of Appeals

Fifth Circuit

F I L E D

June 30, 2011

Lyle W. Cayce

Clerk

 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.

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No. 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]” for 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. Glucerna is billed at a slightly higher price. 

Otherwise, the brands are largely interchangeable.

This discrepancy went 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 specifically mentions

Enriched Ensure. After reviewing [the patients’] files, it comes to

light that both patients were not provided Ensure, 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. What must be proven beyond a reasonable doubt

is that the accused knowingly executed or attempted to 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 returned a guilty verdict on all counts. A

timely appeal followed.

DISCUSSION

Smith argues that allowing the jury to convict based on evidence showing

false claims for Glucerna, when the indictment charged Ensure, was an

impermissible amendment of the indictment. This court reviews de novo

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No. 10-20586

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 upon a factual basis that effectively modifies an

essential element of the offense charged or permits the government

to convict the defendant 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 offense, 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. 2010).

The parties dispute whether Smith properly objected at trial. Regardless

of the review standard, 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 were 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 the evidence and the indictment both

described the same act. In fact, the indictment contained a “misdescription of

the same identical [offense]” as the fraud described at trial, a difference that

does not rise to the level of a constructive amendment. United States v.

Chambers, 408 F.3d 237, 245 (5th Cir. 2005).

Smith has failed to establish that the minor discrepancy 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 evidence that supported those charges. See, e.g.,

United States v. Shah, 44 F.3d 285, 296 (5th Cir. 1995). Smith has not shown

that the error in any way hampered her in preparing a defense.

AFFIRMED.

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