United States v. J. Harris Morgan, Jr. , 499 F. App'x 868 ( 2012 )

Case: 11-10026 Date Filed: 11/28/2012 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-10026
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D.C. Docket No. 1:08-cr-00006-WLS-TOL-1
UNITED STATES OF AMERICA,
Plaintiff ! Appellee,
versus
J. HARRIS MORGAN, JR.,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(November 28, 2012)
ON PETITION FOR REHEARING
Before JORDAN, and HILL, Circuit Judges, and EDENFIELD,* District Judge.
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*Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
Case: 11-10026 Date Filed: 11/28/2012 Page: 2 of 3
PER CURIAM:
After a jury trial, defendant-appellant J. Harris Morgan, Jr. appealed from
his conviction on sixty-nine counts of health care fraud. His appeal was placed on
a non-argument calendar, and a panel of this court affirmed Morgan’s convictions
in an unpublished opinion dated November 30, 2011. United States v. Morgan,
452 Fed.Appx. 866, 20911 WL 5965789 (C.A.11 (Ga.)).
Morgan filed a petition for rehearing, and on January 26, 2012, this court
granted Morgan’s petition, vacated the prior panel opinion, and set his appeal for
oral argument. Having now heard oral argument in this case, and carefully
reviewed the record, the briefs, and the arguments of counsel, this court now
reinstates the prior panel’s opinion in full, reported at 452 Fed.Appx.866,
affirming Morgan’s convictions on sixty-nine counts of health care fraud.
OPINION AND JUDGMENT OF CONVICTIONS REINSTATED AND
AFFIRMED.
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Case: 11-10026 Date Filed: 11/28/2012 Page: 3 of 3
JORDAN, Circuit Judge, concurring in part and dissenting in part:
I agree with my colleagues that the evidence was sufficient to support Mr.
Morgan’s convictions. In my view, however, two combined errors entitle Mr. Morgan
to a new trial. First, although there is no per se rule regarding the failure to give a
good-fath instruction, see United States v. Sirang, 70 F.3d 588, 594 (11th Cir. 1995),
this is one of those cases where the general instruction on the elements of the offense
was insufficient. The district court, as I see it, should have given a good-faith
instruction. See, e.g., United States v. Lewis, 592 F.2d 1282, 1286-87 (5th Cir. 1979)
(holding, in a forgery case, that the jury instructions on intent to defraud failed to
adequately convey the defendant’s good-faith defense, and as a result the failure to
give a good-faith instruction constituted reversible error). Second, I do not think that
the improper admission of the Rule 404(b) evidence was harmless. This was a
relatively close case, and the mere fact that the evidence was sufficient to convict
does not mean that the error was harmless, particularly in light of the absence of a
good-faith instruction. See United States v. Hand, 184 F.3d 1322, 1329 (11th Cir.
1999) (“An error may substantially influence an outcome and thus warrant reversal
even if the evidence, had no error occurred, would have been sufficient to support the
conviction.”).
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