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UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 97-60157

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HOWARD DAVIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

January 13, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Howard Davis appeals his conviction for conspiracy to offer

and pay inducements for Medicare patient referrals, in violation of

18 U.S.C. § 371, and two counts of offering and paying such

inducements, in violation of 42 U.S.C. § 1320a-7b(b)(2)(A). Davis

alleges that the district court erred in failing to give the jury

certain requested instructions regarding the mental state required

to violate the relevant statutes and also in admitting evidence of

multiple, unrelated conspiracies. We affirm.

We review a district court’s refusal to give a requested

instruction only for an abuse of discretion. United States v.

Smithson, 49 F.3d 138, 142 (5th Cir. 1995). In order to prevail
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under this standard, Davis must demonstrate that his requested

instructions were (1) correct statements of the law, (2) not

substantially covered in the charge as a whole, and (3) of such

importance that “the failure to instruct the jury on the issue

seriously impaired the defendant’s ability to present a given

defense.” United States v. Upton, 91 F.3d 677, 683 (5th Cir.

1996), cert. denied sub nom. Barrick v. United States, 117 S. Ct.

1818 (1997).

Davis’ first requested instruction asserts that the jury may

find Davis guilty of conspiracy only if it finds that Davis’ cash

payments to a certain doctor were “for no other purpose” than

“inducing the referral of Medicare patients.” This is an erroneous

statement of the law and was therefore correctly denied. See Polk

County, Tex. v. Peters, 800 F.Supp. 1451, 1456 (E.D. Tex. 1992)

(holding that as long as “the benefits extended to [the]

[d]efendant were, in part, an inducement for him to refer patients

to the hospital . . . [t]he Court must . . . find that the

Agreement . . . violates [the predecessor to 42 U.S.C. § 1320a7b(b)(2)(A)]”). Likewise, the district court correctly refused

Davis’ second requested instruction dealing with the subject of

good faith because those concepts were adequately explained through

the district court’s definitions of the terms “knowingly” and

“willfully.” See Upton, 91 F.3d at 683 (finding the “good faith

defense . . . substantially covered by the charge” because the

“district court instructed the jury on ‘knowingly’ and

‘willfully’”).
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Davis argues, however, that the general definitions of those

terms will not suffice here, given that 42 U.S.C. § 1320a7b(b)(2)(A) contains a “heightened scienter requirement.” See

Hanlester Network v. Shalala, 51 F.3d 1390, 1400 (9th Cir. 1995)

(construing a similar provision of the Medicare-Medicaid antikickback statute as requiring “(1) know[ledge] that § 1128B

prohibits offering or paying remuneration to induce referrals, and

(2) engag[ing] in prohibited conduct with the specific intent to

violate the law.”). Without deciding whether the statute does

contain such a requirement, however, we note that even the

Hanlester court requires knowledge only that the conduct in

question was unlawful, and not necessarily knowledge of which

particular statute makes the conduct unlawful. See id. (finding

one defendant’s conduct “knowing and willful” even under a

heightened standard of mens rea because “[h]er actions reflect both

knowledge that her conduct was unlawful, and a specific intent to

disobey the law.”). Viewed in this light, the district court’s

instructions amply protected Davis’ interests by informing the jury

that knowingly “means that the act was done voluntarily and

intentionally, not because of mistake or accident,” and willfully

“means that the act was committed voluntarily and purposely with

the specific intent to do something the law forbids; that is to

say, with bad purpose either to disobey or disregard the law.” See

United States v. Garcia, 762 F.2d 1222, 1224 (5th Cir. 1985)

(approving substantially the same definition of “willfully” and

rejecting the argument that the definition “was incomplete since it
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did not clearly require that the Defendant have knowledge of the

particular law allegedly violated”).

Davis also claims that the district court erred by admitting

evidence that his alleged co-conspirator, Jerry Dunn, offered not

only cash in exchange for Medicare referrals, but also offered

referring physicians the use of condominiums in Florida. Davis

claims that this additional proof created a material variance

between the indictment, which alleged only a single conspiracy, and

the proof at trial, which Davis claims showed two different

conspiracies——one to pay cash in exchange for referrals and one to

grant the use of condominiums in exchange for such referrals. In

order to prevail on a material variance claim, Davis would need to

demonstrate not only that a variance existed but also that it

affected his substantial rights. See United States v. Morgan, 117

F.3d 849, 858 (5th Cir.), cert. denied sub nom. Ryan v. United

States, 118 S. Ct. 454, and Wright v. United States, 66 U.S.L.W.

3417 (1997). Because the evidence is sufficient to prove Davis’

participation in at least one conspiracy involving cash payments,

however, we need not address whether a variance even existed

because “we have long held that when the indictment alleges the

conspiracy count as a single conspiracy, but the government proves

multiple conspiracies and a defendant’s involvement in at least one

of them, then clearly there is no variance affecting that

defendant’s substantial rights.” See United States v. Faulkner, 17

F.3d 745, 762 (5th Cir. 1994) (citations omitted).

AFFIRMED.