IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20781

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CHERYL WALLER,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CR-171-11

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

A grand jury charged Cheryl Waller with one count of conspiracy to 

defraud the United States and to pay and receive kickbacks, in violation of 18 

U.S.C. § 371, and one count of payment and receipt of healthcare kickbacks, in 

violation of 18 U.S.C. § 2 and 42 U.S.C. § 1320a-7b(b)(1), (b)(2), the “antikickback statute.” On appeal, Waller contends that the district court’s jury 

instructions were erroneous because they failed to state that (1) specific intent 

 

* 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

October 31, 2018

Lyle W. Cayce

Clerk

 Case: 17-20781 Document: 00514704810 Page: 1 Date Filed: 10/31/2018
No. 17-20781

2

to defraud and materiality are elements of the anti-kickback statute, and (2) 

the Government was required to prove specific intent to defraud with respect 

to the conspiracy charge.

Waller correctly concedes that because she did not object to the 

instructions as written, plain-error review applies. See United States v. Willis, 

38 F.3d 170, 179 (5th Cir. 1994). On plain-error review, a defendant must show 

(1) a forfeited error; (2) that is clear or obvious; and (3) that affected her 

substantial rights, which in the ordinary case means that it affected the 

outcome of the proceedings. See Puckett v. United States, 556 U.S. 129, 135 

(2009). If those three prongs are satisfied, this court can, in its discretion, 

remedy the error if it “seriously affects the fairness, integrity or public 

reputation of judicial proceedings.” Id. (alterations omitted) (quoting United 

States v. Olano, 507 U.S. 725, 736 (1993)). An error in a jury instruction “is 

plain only when, considering the entire charge and evidence presented against 

the defendant, there is a likelihood of a grave miscarriage of justice” or “it could 

have meant the difference between acquittal and conviction.” United States v. 

McClatchy, 249 F.3d 348, 357 (5th Cir. 2001) (alterations and citations 

omitted) (quoting United States v. Sellers, 926 F.2d 410, 417 (5th Cir. 1991)

and United States v. Anderson, 987 F.2d 251, 256 (5th Cir. 1993)).

To be plain, an error must be clear under current law at the time of 

appeal. United States v. Escalante-Reyes, 689 F.3d 415, 420 (5th Cir. 2012) (en 

banc). “There is no plain error if the legal landscape at the time show[s] the 

issue [i]s disputed.” United States v. Rodriguez-Parra, 581 F.3d 227, 230 (5th 

Cir. 2009). There is no controlling authority expressing that the anti-kickback 

statute requires specific intent to defraud or materiality. Given the absence of 

 Case: 17-20781 Document: 00514704810 Page: 2 Date Filed: 10/31/2018
No. 17-20781

3

law supporting her position, Waller cannot show a clear or obvious error.1 See 

United States v. Segura, 747 F.3d 323, 330 (5th Cir. 2014).

AFFIRMED.

 

1 Waller’s claim that specific intent to defraud is required for conspiracy fails for the 

same reason, because “[t]he government must prove the same degree of criminal intent as is 

necessary for proof of the underlying criminal offense.” See United States v. Dadi, 235 F.3d 

945, 950 (5th Cir. 2000).

 Case: 17-20781 Document: 00514704810 Page: 3 Date Filed: 10/31/2018