United States v. Andrew E. Fisher

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11879
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW E. FISHER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:19-cr-00076-MCR-1
____________________
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2 Opinion of the Court 21-11879
Before WILSON, BRANCH, and LAGOA, Circuit Judges.
LAGOA, Circuit Judge:
Andrew Fisher appeals his convictions for conspiracy to
commit health care fraud, in violation of 18 U.S.C. §§ 1347, 1349;
conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343,
1349; and conspiracy to commit money laundering in violation of
18 U.S.C. §§ 1956(h), 1957. On appeal, Fisher argues that: (1) the
evidence at trial was not legally sufficient to warrant his convic-
tions, and (2) the district court’s failure to provide limiting instruc-
tions to the jury on the alleged means of accomplishing the con-
spiracy amounted to approving a constructive amendment of the
indictment. After careful review, and with the benefit of oral argu-
ment, we affirm.
I. BACKGROUND
In July 2019, a federal grand jury indicted Andrew Fisher for
his role in a scheme to defraud TRICARE, a federal health insur-
ance program. Count One of the indictment charged Fisher with
conspiracy to commit health care and wire fraud, in violation of 18
U.S.C. §§ 1343, 1347, and 1349. Count Two charged Fisher with
conspiracy to commit money laundering, in violation of 18 U.S.C.
§§ 1956(h) and 1957.
Both charges concerned Fisher’s conduct that occurred be-
tween October 2014 and December 2015 as the head of a pharmacy
he opened and ran in Florida. The indictment mainly alleged that
Fisher conspired to seek reimbursements from TRICARE for
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21-11879 Opinion of the Court 3
fraudulent prescriptions. According to the indictment, Fisher
knew there was no legitimate doctor-patient relationship between
the prescriber of the fraudulent prescriptions and the patient, yet
Fisher agreed to have his pharmacy fill the prescriptions, ship the
medications, and submit claims to TRICARE. Fisher would then
pay his co-conspirator a commission of approximately fifty percent
of any reimbursement received for a prescription submitted to
Fisher by his co-conspirator or his co-conspirator’s employees. The
indictment also alleged that Fisher sought reimbursements for pre-
scriptions, while not seeking to enforce the co-pay requirement
that was part of the TRICARE contract, and that Fisher directed his
employees to use needlessly expensive ingredients in compound
medications to maximize the reimbursements Fisher’s pharmacy
could bill to TRICARE.
The parties agree that Fisher owned and operated a phar-
macy that was filling fraudulent prescriptions and seeking reim-
bursement from a federal health insurance program called
TRICARE, but Fisher claims he did not know the prescriptions
were fraudulent. The government argues that Fisher was a know-
ing and willing participant in the conspiracy to defraud TRICARE.
The case proceeded to a jury trial and the trial record reflects
the following.1
1We “review de novo the sufficiency of the evidence to support a conviction,
viewing the evidence in the light most favorable to the verdict and drawing all
reasonable inferences and credibility choices in the verdict’s favor.” United
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4 Opinion of the Court 21-11879
A. General Background
TRICARE is a federal medical benefits program that pro-
vides health insurance to active duty and retired military service
members and their families, including prescription drug benefits.
TRICARE contracts with Express Scripts, Inc., to administer its pre-
scription drug benefits in accordance with TRICARE rules and reg-
ulations.
In its role as TRICARE’s pharmacy benefits manager, Ex-
press Scripts creates and manages the network of pharmacies eligi-
ble to fill TRICARE prescriptions by contracting with those phar-
macies on behalf of TRICARE. These pharmacies are called “net-
work pharmacies.” TRICARE beneficiaries who fill prescriptions
at network pharmacies are responsible only for a co-pay amount,
instead of the total cost of the drug. Express Scripts’s network
agreements state that a network pharmacy’s failing to collect re-
quired co-pays may result in “immediate termination” from the
network.
Once a prescription is filled, the pharmacy submits a claim
to Express Scripts for reimbursement. Express Scripts, on behalf of
TRICARE, reimburses the pharmacy for covered drugs, at rates es-
tablished by TRICARE. Express Scripts reimburses network phar-
macies by electronic transfer or check through a central payment
States v. Grow, 977 F.3d 1310, 1320 (11th Cir. 2020) (quoting United States v.
Deason, 965 F.3d 1252, 1262 (11th Cir. 2020)).
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21-11879 Opinion of the Court 5
processor—in this case, the American Pharmacy Cooperative,
Inc.—which processes and later transfers the funds to the phar-
macy. TRICARE rules require that prescriptions must be made un-
der a licensed health care practitioner’s determination that the pre-
scription is medically necessary for the beneficiary. In other words,
if TRICARE or Express Scripts knew that a prescription was not
written with a licensed practitioner’s determination that the pre-
scription was medically necessary, they would deny the claim.
The prescriptions at the center of this case were for “com-
pound medications.” Unlike most prescription drugs, which are
premade for the pharmacy to dispense, compound medications are
prepared by a pharmacy by combining different ingredients specif-
ically prescribed by a physician for an individual patient. Thus,
they are reimbursed based on each individual ingredient in the
compound. Examples of compound medications include scar
creams, pain creams, and combinations of vitamins.
During the relevant time, TRICARE’s prescription drug
benefits included payment for certain individual ingredients of
compound medications, some of which were reimbursed at ex-
tremely high rates. In May 2015, TRICARE severely cut back cov-
erage on compound medications, making compounding much less
lucrative.
B. The Underlying Conspiracy
The conspiracy Fisher joined was in motion before Fisher
got involved. And the underlying conspiracy is not in dispute. It
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started in 2013 when Scott Burton established a scheme with Brad
Hodgson that involved submitting fraudulent prescriptions for
TRICARE beneficiaries and seeking high reimbursement rates.
Burton owned a company called Simply Surgical, which em-
ployed many sales representatives working for commissions based
on insurance reimbursements from compound medications.
Hodgson worked as an assistant to Dr. Jeff Traub, an orthopedic
surgeon with three offices in the Atlanta area. 2 Burton asked Hodg-
son to write prescriptions for compound medications for Burton’s
friends and family. These friends and family were not patients of,
and never saw, Dr. Traub, but Burton told Hodgson that they had
conditions requiring pain or scar creams. Because Hodgson was
not licensed to prescribe medication, he first sought and received
Dr. Traub’s permission to write the prescriptions on Dr. Traub’s
behalf. But as the volume of Burton’s prescriptions increased,
Hodgson stopped asking Dr. Traub for permission to write the pre-
scriptions and continued signing Dr. Traub’s name. At trial, Hodg-
son testified that Dr. Traub knew that Hodgson was writing pre-
scriptions for Burton, but Dr. Traub “wasn’t aware of how many,
how often, or where they were actually being sent.”
Once the scheme got going, the process went as follows:
Burton and his sales representatives would recruit people—mostly
TRICARE beneficiaries—to receive prescriptions for compound
2Hodgson was an assistant to the physician, not a physician assistant, and at
no time was he licensed to prescribe medication.
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medications with high reimbursement rates. Burton testified that
he focused on compound prescriptions for TRICARE beneficiaries
because “TRICARE was one of the highest paid, the highest reim-
bursed” for compound prescriptions. Burton would email new
“patient” information to Hodgson and another employee in Dr.
Traub’s office, Marie Smith. This information included the per-
son’s driver’s license and insurance cards and what prescription
Hodgson should write. Smith would transfer the fake patient’s in-
formation to Dr. Traub’s patient database to make it look like a real
patient seen by Dr. Traub. Hodgson would then write the prescrip-
tion, forge Dr. Traub’s signature, and send it off to the pharmacy.
The pharmacy in turn would fill the prescription and seek reim-
bursement from the insurance company.
Once the pharmacy was reimbursed, the pharmacy would
pay Burton his commission, which was fifty percent of the reim-
bursement. Burton would then pay Hodgson $25 for every pre-
scription that was reimbursed by the insurance company. In total,
Hodgson made between $8,500 and $10,000 from the scheme. Bur-
ton paid Smith $25 per hour for her efforts, as well as kickbacks for
recruiting her husband to receive these compound medications
and receiving the medications herself.
As a result of this scheme, Burton pleaded guilty to conspir-
acy to commit the crimes of health care fraud, wire fraud, and
money laundering and the substantive crime of money laundering.
Hodgson pleaded guilty to conspiracy to commit health care fraud,
conspiracy to commit wire fraud, and the crimes of receiving
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health care kickbacks and identity theft. Other co-conspirators
pleaded guilty for their participation, including Marie Smith.
Burton, Hodgson, and Smith at first processed the fraudu-
lent compound prescriptions through a TRICARE network phar-
macy called Curant Heath. But Curant Health was not “in” on the
scheme, and in August 2014, the pharmacy began asking questions
about who was writing the prescriptions from Dr. Traub’s office
and whether the prescriptions were for actual patients of
Dr. Traub. Around August 2014, Burton testified, Curant Health
refused to accept any more prescriptions from Dr. Traub. 3
Burton was on the hunt for another TRICARE network
pharmacy to sell compound medications with, when one of his for-
mer sales representatives recommended Burton speak with An-
drew Fisher.
C. Fisher Opens Physician Specialty Pharmacy
In September 2014, Fisher opened a pharmacy in Pensacola,
Florida, called Physician Specialty Pharmacy. 4 Fisher was not
3Burton testified that by August 2014, Curant Health would no longer accept
prescriptions from Dr. Traub. Hodgson testified that Curant Health never
refused to accept Dr. Traub prescriptions, but that he and Burton made the
decision to transition to another pharmacy. Either way, it is undisputed that
Curant Health had many questions about the prescriptions from Dr. Traub,
and Burton wanted to work with a new pharmacy.
4 Fisher was at least the majority owner of Physician Specialty Pharmacy
through a corporate entity called Hydra Medical Ventures, which was owned
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21-11879 Opinion of the Court 9
himself a pharmacist, but he held the title of President and was in
charge of the pharmacy.
To get the business off the ground, Fisher and his operations
manager Cary McKnight procured a building, obtained a pharmacy
license, and started contracting with insurance companies. Physi-
cian Specialty Pharmacy hired pharmacists to develop and fill pre-
scriptions, pharmacy technicians to assist the pharmacists, and pa-
tient care specialists to gather and confirm patient demographic
and insurance information. Two of the pharmacy’s key employees
were Glenn Hanson as pharmacist-in-charge, and Vicki Cowart,
who eventually became the sales representative liaison between
Physician Specialty Pharmacy and its contract sales representatives.
Physician Specialty Pharmacy specialized in compound
medications. When Fisher opened Physician Specialty Pharmacy,
TRICARE was the last reliable insurance company paying high re-
imbursement rates for compound medications. Physician Spe-
cialty Pharmacy obtained contracts to fill prescriptions for the ben-
eficiaries of several insurance companies, but not TRICARE. To
access TRICARE’s high reimbursement rates, Physician Specialty
by MedPro Wealth Builders. In turn, MedPro Wealth Builders was owned by
Fisher and his wife.
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Pharmacy entered into a “central fill agreement” with a TRICARE-
network pharmacy in Pace, Florida, called Burklow Pharmacy. 5
The business relationship between Physician Specialty Phar-
macy and Burklow Pharmacy worked as follows: Physician Spe-
cialty Pharmacy used Burklow Pharmacy’s billing system and con-
tracts to bill for prescriptions that Physician Specialty Pharmacy re-
ceived, filled, and shipped, and in exchange, Burklow Pharmacy
would retain fifteen percent of the insurance reimbursements. At
trial, the government asked Physician Specialty Pharmacy’s vice
president of pharmacy operations whether it was normal for a cen-
tral fill pharmacy to receive, fill, and ship prescriptions and use the
originating pharmacy to bill for the prescriptions. The witness re-
sponded, “That would not be a normal central fill agreement, no.”6
Fisher had a similar arrangement with Jay Pharmacy in Santa Rosa
County, Florida.
D. Fisher’s Pharmacy Begins Filling Burton’s Fraudulent Pre-
scriptions
5 Central fill agreements allow nonnetwork pharmacies to contract with net-
work pharmacies to fill prescriptions and bill through the network pharmacy
to be eligible for reimbursement.
6 During his testimony, the witness explained how central fill agreements gen-
erally work: “A central fill agreement would be Pharmacy A received the pre-
scriptions, does the billing, and they send the prescription to Pharmacy B to
actually fill it and send it out to the patient.”
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When Burton and Fisher first made contact in the Fall of
2014, their two businesses were operating separately. As noted, the
Burton-Hodgson conspiracy was in full swing, and Burton was
looking for a new pharmacy to fill the forged Dr. Traub prescrip-
tions. Physician Specialty Pharmacy was up and running and was
filling TRICARE prescriptions for compound medications through
its central fill agreement with Burklow Pharmacy.
By October 2014, the two men had spoken on the phone,
played a round of golf, and come to a business arrangement: Bur-
ton agreed to market Physician Specialty Pharmacy’s formulas for
a fifty percent commission from the insurance reimbursements re-
ceived on every prescription that Burton and his sales representa-
tives forwarded to Physician Specialty Pharmacy. Burton would
receive payments through his company, Simply Surgical, and
would pay his representatives from his cut.
Importantly, Burton also testified that in the initial phone
call with Fisher, Burton told Fisher about his troubles with Curant
Health and that he was looking for a pharmacy that would accept
prescriptions from Dr. Traub. Burton described the conversation
like this:
So I told him—he asked me why we weren’t using the
other pharmacy, [Curant Health,] and I said, we had
a doctor, Dr. Traub, who was prescribing these pain
and scar creams to patients that were friends of mine
or my representatives or relatives that needed these
pain and scar creams that were out of state; and that
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Dr. Traub didn’t actually see the patients. And I said,
Dr. Traub was okay with this, because, as Dr. Traub
said, this isn’t OxyContin; this is a pain – topical pain
and scar cream, it’s not a big deal, I have been pre-
scribing to friends and family for years.
So I told Andrew Fisher that; and I said, look, is this
going to be a problem at your pharmacy? He said, as
long as it’s not a problem with the surgeon, I have no
problem with it.
At trial, Burton was asked whether there were other times
he discussed with Fisher “the fact that these prescriptions didn’t
have a real doctor/patient behind them”; Burton answered: “Many
times.” Burton explained that because many of the patients Burton
recruited were from out-of-state—and often in states that Physician
Specialty Pharmacy was not licensed to dispense medications—
they “would have to discuss, well, this is a patient from Dr. Traub
who he didn’t actually see,” and the prescriptions would have to be
shipped to an address in Georgia instead of the state in which the
patient resided. Evidence at trial included an email sent by Fisher
to Burton asking Burton to provide a Georgia address for out-of-
state prescriptions of Dr. Traub. Burton gave his home address for
shipping some prescriptions and testified that another sales repre-
sentative also provided an Atlanta address for shipping prescrip-
tions for out-of-state patients.
Once Burton and Fisher came to an agreement, the Burton-
Hodgson scheme continued pretty much as it had before, except
Burton directed Hodgson to send all of Dr. Traub’s fraudulent
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21-11879 Opinion of the Court 13
prescriptions directly to Physician Specialty Pharmacy, i.e., not to
the TRICARE network pharmacies, Burklow Pharmacy or Jay
Pharmacy. Burton and his sales representatives recruited
TRICARE beneficiaries to accept compound medications without
seeing Dr. Traub and sent the recruited patient information to
Hodgson, who would forge the prescription and then fax the pre-
scription from Dr. Traub’s office to Physician Specialty Pharmacy.
Under Burton and Fisher’s arrangement, Burton and his
sales representatives distributed Physician Specialty Pharmacy’s Rx
pads—listing the pharmacy’s products and formulas—to physi-
cians. Burton and his sales representatives also directly recruited
their friends and family members who were TRICARE beneficiar-
ies to provide their demographic and TRICARE information and
accept the compound medications prescribed by Dr. Traub, with-
out seeing the doctor. The government provided examples at trial
of individuals who were friends or family members of Burton or
his sales representatives who provided their TRICARE information
for this purpose. As previously noted, Hodgson would send the
forged prescriptions directly to Physician Specialty Pharmacy to
fill. Despite the connection between Dr. Traub’s office and Physi-
cian Specialty Pharmacy, there was no evidence Fisher knew that
Hodgson was forging Dr. Traub’s signature; Hodgson testified that
he never met Fisher or communicated with him in any way.
Each of Burton’s sales representatives had a fax number
linked to them, so that Physician Specialty Pharmacy would know
which sales representative generated the prescription. Then,
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Physician Specialty Pharmacy’s patient care specialists would con-
firm the information. Once confirmed, they would submit the
claim to the insurance company and forward the prescription to lab
for filling. And once filled, the pharmacy shipped to the prescrip-
tion to the patient.
E. Fisher’s Pharmacy Begins Engaging in “Gray Area” Prac-
tices
Fisher’s employees at Physician Specialty Pharmacy did not
know that some of Dr. Traub’s prescriptions were not based on a
legitimate doctor-patient relationship. Physician Specialty Phar-
macy had multiple patient care specialists who were responsible for
confirming whether patient information was correct. But Fisher’s
sales representative liaison Vicki Cowart became suspicious that
something was awry in August 2015 when she received a troubling
call from one of Burton’s sales representatives, Doran Fortune. She
sent Fisher an email describing the call:
I received a call from Doran Fortune, a Simply Surgi-
cal rep. . . . Today he sounded worried and con-
cerned. Doran said he has received a disturbing com-
munication from our TRICARE patient, Mark T.
Searles. Doran had personally suggested to the pa-
tient that he visit Dr. Traub while in Atlanta. We re-
ceived a script for this patient from Dr. Traub and
filled four items between 4/29 and 4/30/15, each as a
90-day supply and the patient had no co-pay. Accord-
ing to Doran, the patient never received the meds. In
fact, the patient lives in Woodbridge, Virginia . . . .
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[T]he patient received an EOB from TRICARE show-
ing we billed $118,000 and TRICARE paid $95,000.
Patient assumes that $23,000 is owed. Patient is com-
pletely astounded at these amounts and feels he
somehow is involved in our fraudulent billing prac-
tices through Jay Pharmacy. I confirmed through Jay
PK that TRICARE should be paying us $95,599.76 for
90-day supplies of the four medications Dr. Traub
submitted on his prescription. . . .
I reminded Doran that we absolutely do not partici-
pate in anything fraudulent. I also checked the deliv-
ery information from UPS, and two packages of meds
were delivered to and signed for at the condominium
address in Atlanta which we were provided by Dr.
Traub’s office as being the patient’s address.
In the same email, Cowart reported to Fisher that Doran told her
about “10 of his close friends who [Searles] recommended to Dr.
Traub on Scott Burton’s recommendation” and that “[i]t sounds
like they all filled out a questionnaire provided by Dr. Traub and
possibly none of them were actually seen.”
In response, Fisher thanked Cowart, said he would call
Doran, and asked Cowart why the prescriptions were sent to Geor-
gia. Here is the rest of the email exchange:
Cowart: “The address we shipped to was provided by
Dr. Traub.”
Fisher: “But what address did we verify with the pa-
tient, the Georgia address or the Virginia address?”
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Cowart: “We verified the Georgia address according
to the notes. I am checking the other patients I know
to be those of Doran Fortune, and I have found a sec-
ond one with the same Atlanta address. Heather ran
an ad hoc report, and it appears four out of Doran’s
14 patients had meds shipped to the same . . . address
in Atlanta. I smell a fish. Vicki.”
Fisher: “I know in the past we have sent medications
for Dr. Traub’s patients to an address of someone in
his office so the patient can pick them up. We’ll have
to figure out what is going on in this particular situa-
tion. Let’s not jump to conclusions until we have a
chance to gather more info. Thank you.”
There is no evidence that Fisher took any action.
Earlier in the trial, Burton testified that he told Fisher that
Fortune had recruited many patients at a bachelor party. An email
listed the names of attendees, and Mark Searles was on the list. Ac-
cording to Burton, Fisher’s only concern with that list of patients
was that they were from out-of-state, and Fisher told Burton to use
an Atlanta address for them.
While unaware of the Burton-Hodgson scheme, several
Physician Specialty Pharmacy employees testified to “gray area”
pharmacy practices at Physician Specialty Pharmacy, with “gray
area” meaning that the practices were not per se illegal. But the
employees believed those practices may have been part of a bigger
scheme. In fact, Cary McKnight testified that during a conversation
about Physician Specialty Pharmacy’s sales representatives, Fisher
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said, “that he knew that the pharmacy is supposed to be black and
white but that he liked to operate in the gray area.”
One of these “gray area” practices was billing TRICARE for
expensive ingredients. Claims for compound medications using
different ingredients could vary widely. For example, if a com-
pound cream used Lipoderm as the base, Physician Specialty Phar-
macy could be reimbursed $580.47, while a similar base ingredient
called Stera Base could be reimbursed for $3,368.16. Of course,
making money is not illegal, but the government presented evi-
dence that Fisher was singularly focused on maximizing profitabil-
ity. For example, McKnight testified about discussions with Fisher
about how to bill the most from insurance and how ingredients of
some formulas changed over time to increase profitability. And,
according to Burton, Fisher had a method for creating formulas
that would pay the most from each insurance company. Physician
Specialty Pharmacy would send out “trial reimbursement[s]” using
different ingredients to see what would “get the maximum amount
of reimbursement for each insurance company.” Burton further
testified that the draw of using Physician Specialty Pharmacy was
that Fisher “had a system in place” to “get maximum reimburse-
ments from each insurance company.”
At trial, the government asked McKnight—former pharma-
cist-in-charge at Physician Specialty Pharmacy—about specific
times a Physician Specialty Pharmacy formula changed to increase
profitability. McKnight responded that Fluticasone “always comes
to mind” because it was “a very expensive ingredient” used in scar
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18 Opinion of the Court 21-11879
gels that “elevated the price” that Physician Specialty Pharmacy
could bill the insurance companies. He said that the pharmacy he
worked at before Physician Specialty Pharmacy used .1 percent of
Fluticasone in their scar gel, but Physician Specialty Pharmacy
“changed to a full 1 percent Fluticasone, which was 10 times more
than what we were using.” McKnight added that “[t]he pharmacist
at the time questioned it because, according to them, it wasn’t—
the efficacy of increasing the Fluticasone was not beneficial. But
that is, again, between them and the doctor.” McKnight also testi-
fied that, although the pharmacists had input into the development
of the compounded prescription formulas, Fisher had the final say
in approving them.
Glen Hanson, the former pharmacist-in-charge at Physician
Specialty Pharmacy, also testified that a scar cream formula was
changed “because of the high reimbursement amount.” Hanson
testified that Fisher, another pharmacist, and a sales representative
went to Louisiana to find a different base that “would gross more
money.” As a result of the trip to Louisiana, Physician Specialty
Pharmacy switched from a cream base called Lipoderm to a more
expensive base called Stera Base. Though more expensive, Hanson
testified that Stera Base was “a poor quality product” because it was
runny and did not hold the ingredients together as well as the
cheaper base.
Hanson testified that tension developed between him and
Fisher over the formulas because Hanson was concerned about the
quality of the product and Fisher was concerned with using
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21-11879 Opinion of the Court 19
ingredients to increase profits. For example, when Fisher sus-
pected that the pharmacists were not using Stera Base, he emailed
Hanson, stating:
One of the claims was a pain cream for 480 grams that
reimbursed around 4,000. If we used and billed Stera
Base, it should be twice that. Please check on these
patients and make sure we used and billed Stera Base.
If we did not bill Stera Base, please reverse and bill
them utilizing a formula with Stera Base.
Hanson also testified to a disagreement over a decision by Fisher
not to reverse an insurance claim after a customer had returned the
product, which caused Hanson to resign.
In a voluntary interview with Vanessa Carmona—an agent
of the Florida Department of Law Enforcement and a task force
officer with the Federal Bureau of Investigation—Fisher told Agent
Carmona that when he started Physician Specialty Pharmacy, he
knew TRICARE was the “last reliable insurance company that paid
for compounds.” Agent Carmona testified that Fisher told her
“whatever the maximum reimbursable amount was that he could
get from the insurance company, that that’s what he was going to
charge.” For example, “if it cost him $500 to make a prescription,
but TRICARE was willing to pay $6,000, then he was going to bill
that maximum amount for that prescription.” Agent Carmona tes-
tified that Fisher “agreed that it was inflated, but he also said that
. . . if they were willing to pay that much—‘they’ being like
TRICARE, the insurance companies—then they were going to bill
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20 Opinion of the Court 21-11879
the maximum that they were allowed to.” Agent Carmona testi-
fied that Fisher said he “felt like he took advantage of” TRICARE’s
high reimbursement rates, but “stated several times that he felt like
everything he did was within the law, and that he had not de-
frauded anybody.”
The government also presented evidence that Fisher disre-
garded the pharmacy’s duty to collect co-pays from the patients.
Burton testified that “the co[-]pay part came up quite a bit” because
“patients didn’t want to pay the co[-]pay.” Burton testified that
“Fisher contacted [him] by phone” and told him “if you’re having
any issues with patients not wanting to pay or if your reps have
issues or anybody dealing with these patients are getting a call, let
the patients know that by law we have to bill the patients one time”
and that “[i]f they don’t pay their co[-]pay, we’re not going to send
them to collections, so just let them know they can throw that bill
away, they don’t need to pay it.”
Cary McKnight also testified that Fisher was not concerned
about co-pays and referenced an incident described in an email
drafted by Fisher. A patient had balked at a $17 co-pay, and Fisher
instructed McKnight to ship the medication and simply send an in-
voice and write the co-pay off if the customer continued to balk.
According to McKnight, Fisher’s philosophy was that: “if you got a
$5,000 prescription, you’re not worried about a hundred dollar co-
pay.” Burton testified that Fisher said something similar to him,
i.e., that Fisher “didn’t want to let a $10,000 reimbursement go
away because somebody didn’t want to pay a $17 co-pay.”
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21-11879 Opinion of the Court 21
Vicki Cowart’s notes from work, which she read during her
testimony at trial, indicated that she received similar instructions
regarding co-pays, although she could not remember from whom.
Cowart also referenced a procedure for “force fills,” which she de-
scribed as filling prescriptions without getting the patient’s consent
beforehand.
F. The Scheme Unravels
Eventually, Fisher started looking to purchase pharmacies to
spread out Physician Specialty Pharmacy’s billing as not to draw
attention from the insurance companies. He emailed Physician
Specialty Pharmacy stakeholders, stating:
[T]he main reasons we are looking into purchasing
this pharmacy, in addition to it potentially being a
good investment in and of itself is, one, so that we can
expand our operations. The insurance companies ac-
tively target pharmacies that bill over a certain
amount per month, so having multiple pharmacies
billing a lower amount each month is an ideal strat-
egy for staying off their radar. The second reason is
because right now we are paying the pharmacy that
we bill through around 13 percent of our gross sales.
So for December, we basically paid them $390,000 to
let us bill through their contracts. While I do appreci-
ate their willingness to work with us, that is com-
pletely ridiculous, given that we do 99.74 percent of
the work, and it is all of our business.
And, in February 2015, Fisher acquired Jay Pharmacy.
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22 Opinion of the Court 21-11879
As it turns out, Fisher’s fears were well founded. Eventually,
Burklow Pharmacy, Jay Pharmacy, and Physician Specialty Phar-
macy came under scrutiny from TRICARE’s pharmacy benefits
manager Express Scripts and the central payor, American Phar-
macy Cooperative, because of extraordinarily high billings and a
concern as to whether the doctor-patient relationships underlying
the pharmacies’ claims were legitimate.
In late 2014, an accountant from American Pharmacy Coop-
erative noticed a huge surge in Burklow Pharmacy’s billing, rising
from between $200,000 and $300,000 per month to $1 million.
American Pharmacy Cooperative therefore withheld payments to
Burklow Pharmacy from Express Scripts, and TRICARE suspended
claim payments for all claims from Burklow Pharmacy.
Then, in March 2015, Fisher received notice that TRICARE
would be initiating new screening procedures for compounded
medication claims as of May 1, 2015, making it harder to bill for
compounded medications. Fisher referred to this date as “D-Day”
and, before that date, Fisher pushed to “bill as much as possible”
and then to “refill as many of those as possible as 90-day supplies”
before May 1. To implement his plan, Fisher sent a letter asking
his doctors to sign authorizations for 90-day refills. For Dr. Traub,
Fisher sent the letter to Burton. Hodgson forged Dr. Traub’s sig-
nature and Burton returned the 90-day authorization to Fisher alt-
hough there is no evidence that Fisher was aware of the forgery.
Because of Fisher’s “D-Day” plan, billings skyrocketed in
April 2015. By May 2015, Jay Pharmacy went from billing “around
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21-11879 Opinion of the Court 23
$1500 per month” to billing “several million.” This drew the atten-
tion of American Pharmacy Cooperative, which placed a hold on
Jay Pharmacy’s TRICARE reimbursement checks in May 2015.
American Pharmacy Cooperative returned Jay Pharmacy’s entire
payment to Express Scripts, and TRICARE later terminated its con-
tract with Jay Pharmacy. Express Scripts withheld the payment
while it performed an audit on Jay Pharmacy.
Because Express Scripts was withholding payments, Fisher
could not pay Burton or any other sales representatives for the
commissions they were owed from those reimbursements. On
June 23, 2015, Fisher emailed Burton and other “[Physician Spe-
cialty Pharmacy] partners” explaining that American Pharmacy
Cooperative was “still withholding our funds” while Express
Scripts conducted an audit. The email included a letter attachment
addressed to Jay Pharmacy informing the pharmacy that Express
Scripts planned to audit the pharmacy.
Express Scripts also began an audit on Burklow Pharmacy’s
claims for compound medications to determine whether they were
based on doctor-patient relationships. On October 23, 2015, Fisher
received an email from a business associate forwarding an email
originally sent to Steve Burklow with a letter attachment from the
Office of the Assistant Secretary of Defense (the “DOD letter”).
The DOD letter informed Burklow, as president of Burklow Phar-
macy, that all “payment for present and future claims for services
provided by you or your organization” would be suspended “due
to you having dispensed compound drugs to TRICARE
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24 Opinion of the Court 21-11879
beneficiaries based upon prescriptions written by physicians who
may not have established a physician/patient relationship with the
TRICARE beneficiary.” The DOD letter stated that in the absence
of a valid or appropriate doctor-patient relationship, a prescription
is not valid, and therefore not reimbursable under TRICARE.
On November 17, 2015, in response to the DOD letter,
Burklow’s attorney sent out letter affidavits, asking Burklow and
Fisher to have each doctor sign to attest that the prescriptions were
based on legitimate doctor-patient relationships, in order to satisfy
TRICARE.
Fisher and Burklow discussed the audit and the letter affida-
vits. Burklow testified that TRICARE “wanted affidavits from each
doctor” to “establish the doctor/patient relationship” existed, and
Burklow sent Fisher a letter to have his doctors sign. Burklow tes-
tified that he told Fisher why he needed the letters and specifically
told him that TRICARE was concerned about a lack of doctor-pa-
tient relationships.
Fisher sent the letter affidavit to Burton for Dr. Traub to
sign, accompanied by an email explaining the letter affidavit. In
that email, Fisher informed Burton that Burklow Pharmacy was
being audited by TRICARE and needed to verify the doctor-patient
relationship and assured Burton that this was nothing to be
alarmed about. The letter affidavit attached to the email read:
My name is Dr. Jeff Traub. I am a licensed and prac-
ticing physician in the state of Georgia. As a treat-
ment for my patients, I have written compounding
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21-11879 Opinion of the Court 25
prescriptions. In all cases, I personally met with each
patient for whom I wrote a prescription. I evaluated
every patient for whom I wrote a compounding pre-
scription based on my professional expertise. It is ab-
solutely and equally true that I only wrote and write
prescriptions for patients with whom I had properly
established a physician-patient relationship. More
specifically, it is my understanding that some com-
pounding prescriptions for my patients covered by
TRICARE were submitted to TRICARE or its pro-
cessing agents by Burklow Pharmacy. Any prescrip-
tion written by me and submitted by Burklow Phar-
macy was done in all cases for patients with whom I
had established a proper physician-patient relation-
ship.
(Emphasis added).
Burton testified that Fisher called Burton before sending the
letter affidavit for Dr. Traub to sign, and Fisher explained that if
Burton wanted to receive the commissions that were being with-
held, he would have to get the letter signed. 7 Burton testified that
he told Fisher that he would send the letters, but that Dr. Traub
7 Burton testified that it was common for Fisher to call him before or after
Fisher emailed. Burton said Fisher would call “[t]o clear up things before he
sent the email over” because “[u]sually the email, you know, it was going to
be a little bit different than what we talked about” because Fisher would not
want to put certain things in writing.
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26 Opinion of the Court 21-11879
might not sign the letter because he had not personally seen the
patients.
Burton sent the letter affidavit to Hodgson, who signed and
returned it to Burton. At trial, Hodgson testified that the statement
attesting that Dr. Traub had authorized all prescriptions based on
a proper doctor-patient relationship was not true. Nonetheless,
Burton sent the signed letter affidavit back to Fisher with an email
stating, “Hope this helps. All my docs prescribed these meds to
their patients who legitimately needed them. They have files on
all their patients. So this info should help us get the money we are
owed.” Burton testified that the email was a lie, and that Fisher
knew it was not true. However, even Burton said that he thought
Dr. Traub signed the letter.
In December 2015, Fisher voluntarily sat for an interview
with Agent Carmona. During the interview, Fisher explained that
he opened Physician Specialty Pharmacy because he knew there
was a lot of money to be made in the compounding pharmaceutical
business. He acknowledged that the insurance reimbursement
rates had created an inflated system, and, as previously noted, he
admitted that he took advantage of that system.
In that interview, Fisher said that Physician Specialty Phar-
macy entered a central fill agreement with Burklow Pharmacy be-
cause Burklow Pharmacy was understaffed and needed help. Ac-
cording to Fisher, Burklow Pharmacy would forward prescriptions
to Physician Specialty Pharmacy by fax, and Burklow Pharmacy
was responsible for collecting the co-pays, although Physician
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21-11879 Opinion of the Court 27
Specialty Pharmacy would invoice the co-pays. Fisher told Agent
Carmona that Physician Specialty Pharmacy stopped dealing with
Burklow Pharmacy in April or May 2015 because Burklow Phar-
macy lost its contract with TRICARE. Fisher claimed he did not
know why Burklow Pharmacy lost the contract, even though he
received the DOD letter and email almost two months before the
interview.
According to Agent Carmona, Fisher also contradicted him-
self during the interview. For example, at one point Fisher told
Agent Carmona that Physician Specialty Pharmacy’s sales repre-
sentatives did not recruit patients, but in the same interview he also
told Agent Carmona that Physician Specialty Pharmacy used sales
representatives to market to TRICARE patients—i.e., “the last re-
liable insurance company that paid for [Fisher’s] compounds.”
In February 2016, law enforcement executed a federal search
warrant at Physician Specialty Pharmacy. Law enforcement also
obtained Physician Specialty Pharmacy’s emails and bank records,
as well as records from Dr. Traub’s office. At trial, Suzanne
Reyenga, a forensic accountant with the FBI, testified concerning
a financial analysis of these records. Reyenga testified that, from
October 2014 to August 2015, American Pharmacy Cooperative
paid $19.5 million to Burklow Pharmacy. Burklow Pharmacy
transferred $16.3 million, of that $19.5 million, to Physician Spe-
cialty Pharmacy, and Physician Specialty Pharmacy paid approxi-
mately $8.3 million in commissions to various sales representa-
tives. Of the total commissions paid, Physician Specialty Pharmacy
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28 Opinion of the Court 21-11879
transferred approximately $2 million to Simply Surgical—Burton’s
company. Reyenga further testified that, on several occasions,
Physician Specialty Pharmacy transferred more than $10,000 to
Burton’s account, specifically for prescriptions from Dr. Traub.
Special Agent Paul Tarnuzzer of the Department of De-
fense, Criminal Investigative Service, testified about Dr. Traub’s
patient files and pharmacy records. Agent Tarnuzzer identified
several TRICARE beneficiaries who were not actual patients of Dr.
Traub, but whose demographic information had been submitted
by Burton and his sales representatives for a prescription and for
TRICARE reimbursement. In fact, Tarnuzzer identified only
twelve prescriptions for actual patients of Dr. Traub. Agent
Tarnuzzer testified that the total amount TRICARE paid to
Burklow Pharmacy alone, on claims for prescriptions written by
Dr. Traub, was approximately $3.3 million. In total, between Oc-
tober 20, 2014 and June 30, 2015, TRICARE was billed approxi-
mately $6.2 million, and paid approximately $4.8 million, on pre-
scriptions submitted in Dr. Traub’s name by Burton and his repre-
sentatives.
G. Fisher’s Defense at Trial
In his defense, Fisher presented the testimony of three Phy-
sician Specialty Pharmacy employees to show the normal business
operations at Physician Specialty Pharmacy: pharmacist Thomas
Wiley; patient care specialist April Ryan; and marketing coordina-
tor Kylie Hunt.
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21-11879 Opinion of the Court 29
Fisher originally hired Thomas Wiley in December 2014 as
a “knowledge pharmacist” to help educate the sales representatives
on Physician Specialty Pharmacy’s products and formulas. Wiley
also filled in as a pharmacist sometimes, and in May 2015, Fisher
promoted him to vice president of pharmacy operations. Wiley
testified that he, and all of the other pharmacists at Physician Spe-
cialty Pharmacy, had input into developing the Rx pads: “The phar-
macists always would get together and approve any new prescrip-
tion pad that was presented to us . . . to review it, to make sure
there are no errors, there are no therapy mistakes, no directions
that are wrong, before we send it out.” He testified that a pharma-
cist at Physician Specialty Pharmacy signed off on every prescrip-
tion, meaning that the pharmacist was “approving that prescription
as being safe and effective for the patient’s condition.” Wiley also
testified that Fisher never pressured him or any pharmacist to “use
a formula or ingredient that [the] pharmacist[] was not comfortable
with.”
Patient care representative April Ryan began working for
Physician Specialty Pharmacy in December 2014. She testified that
Physician Specialty Pharmacy confirmed prescriptions, verified pa-
tient demographic information, and “if there was something that
looked to be untruthful or that it was deceitful in any way, then we
would not proceed with that prescription.” She stated that the
pharmacy records showed that more than twenty percent of the
Dr. Traub prescriptions were refused (188 were refused out of 925
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30 Opinion of the Court 21-11879
prescriptions), with notations such as insurance denied, patient de-
nied, patient could not be reached, or unlicensed state.
Physician Specialty Pharmacy marketing coordinator Kylie
Hunt started in April 2015. In an attempt to rebut the govern-
ment’s argument that Fisher did not collect TRICARE co-pays
from patients, Hunt testified that according to a 2015 accounts re-
ceivable report, Jay Pharmacy, which was then owned by Fisher,
collected co-pays from TRICARE beneficiaries. But, as the govern-
ment pointed out on cross-examination, the earliest co-pay related
entry on the report was July 30, 2015.
In his closing argument, Fisher argued that the government
failed to prove that he knowingly and willfully joined a health care
fraud conspiracy, wire fraud conspiracy, or money laundering con-
spiracy with Burton. Fisher maintained that Burton’s testimony
was not credible, that he was unaware of Hodgson’s forgery, that
the “gray area” pharmacy practices were not unlawful, and that his
voluntary interview with investigators showed his lack of willful
intent to join Burton’s conspiracy.
H. Jury Instructions, Deliberations, and Verdict
On the final day of trial, the district court and counsel re-
viewed the proposed jury instructions and the verdict form. The
district court gave the initial portion of its instructions to the jury
before the parties gave their closing arguments and gave the rest of
its instructions after closing arguments. After the court provided
the jury with all of its instructions, and before the jury retired to
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21-11879 Opinion of the Court 31
deliberate, the district court asked counsel if there was “any objec-
tion to the instructions as delivered by the Court to the jury.” The
government responded: “None from the government.” The court
then specifically asked for Fisher’s two attorneys by name for their
response. One of the attorneys, Mr. Feldman, responded: “No ob-
jection, Your Honor.” In other words, the defense did not object
either to constructive amendment of the indictment or inadequacy
of the instructions.
Following five days of trial, the jury retired to deliberate.
During deliberations, the jury sent one communication to the
Court, asking whether it is health care fraud to send a prescription
to a third party in a licensed state with the understanding that the
prescription will be forwarded to a patient in an unlicensed state.
The district court answered, “No,” and stated that “those facts
would not, in and of themselves constitute conspiracy to commit
health care fraud,” and cautioned the jury that the court could not
comment on the evidence.
Following deliberations, the jury returned a verdict of
“guilty” on both counts. Fisher was sentenced to 24 months’ im-
prisonment and ordered to forfeit $4.8 million to TRICARE. Fisher
timely appealed the jury verdict, the order of forfeiture, and the
sentence, arguing the evidence produced at trial was insufficient to
support his convictions and that his indictment was constructively
amended in violation of his Fifth Amendment rights.
II. STANDARD OF REVIEW
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32 Opinion of the Court 21-11879
We review the sufficiency of the evidence to support a con-
viction de novo, “viewing the evidence in the light most favorable
to the verdict and drawing all reasonable inferences and credibility
choices in the verdict’s favor.” United States v. Grow, 977 F.3d
1310, 1320 (11th Cir. 2020) (quoting United States v. Deason, 965
F.3d 1252, 1262 (11th Cir. 2020)). “We may not overturn the jury’s
verdict ‘if any reasonable construction of the evidence would have
allowed the jury to find the defendant guilty beyond a reasonable
doubt.’” United States v. Estepa, 998 F.3d 898, 908 (11th Cir. 2021)
(quoting United States v. Capers, 708 F.3d 1286, 1297 (11th Cir.
2013)). “To support a conviction, ‘[t]he evidence need not be in-
consistent with every reasonable hypothesis except guilt, and the
jury is free to choose between or among the reasonable conclu-
sions to be drawn from the evidence presented at trial.’” Id. (quot-
ing Capers, 708 F.3d at 1297).
We generally review de novo “an alleged constructive
amendment of the indictment.” United States v. Feldman, 931 F.3d
1245, 1253 (11th Cir. 2019). But when a defendant fails to object to
an alleged constructive amendment in the case below, we review
only for plain error. United States v. Holt, 777 F.3d 1234, 1261
(11th Cir. 2015). And “[w]hen a party agrees with a court’s pro-
posed instructions, the doctrine of invited error applies, meaning
that review is waived even if plain error would result.” Grow, 977
F.3d at 1330 (quoting United States v. Frank, 599 F.3d 1221, 1240
(11th Cir. 2010)).
III. ANALYSIS
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21-11879 Opinion of the Court 33
Fisher asks this court to overturn his convictions for two rea-
sons. First, Fisher argues the evidence was insufficient to sustain
his conspiracy convictions. Second, Fisher argues that the district
court’s jury instructions amounted to a constructive amendment
of the indictment. We address Fisher’s arguments in turn.
A. Sufficiency of the Evidence
Fisher was convicted and sentenced for conspiracy to com-
mit health care fraud, in violation of 18 U.S.C. §§ 1347, 1349; con-
spiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343,
1349; and conspiracy to commit money laundering in violation of
18 U.S.C. §§ 1956(h), 1957. On appeal, Fisher contends that the
government’s evidence was insufficient to sustain his conspiracy
convictions because there was no evidence that he knew that
Dr. Traub’s prescriptions were fraudulent.
The crime of health care fraud is defined by 18 U.S.C. § 1347.
Section 1347(a) makes it a crime to
knowingly and willfully execute[], or attempt[] to ex-
ecute, a scheme or artifice-- (1) to defraud any health
care benefit program; or (2) to obtain, by means of
false or fraudulent pretenses, representations, or
promises, any of the money or property owned by, or
under the custody or control of, any health care ben-
efit program, in connection with the delivery of or
payment for health care benefits, items or services.
Under 18 U.S.C. § 1349, it a crime to “attempt[] or conspire[]
to commit any offense under this chapter,” including health care
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34 Opinion of the Court 21-11879
fraud. “[T]o sustain a conviction for conspiracy to commit health
care fraud in violation of 18 U.S.C. §§ 1347 and 1349 . . . , the
[g]overnment had to establish beyond a reasonable doubt that:
(1) a conspiracy existed to commit health care fraud under
18 U.S.C. § 1347; (2) [Fisher] knew of the conspiracy; and
(3) [Fisher] knowingly and voluntarily joined it.” United States v.
Gonzalez, 834 F.3d 1206, 1214 (11th Cir. 2016). Specifically, the
government had to establish that Fisher knew the claims he sub-
mitted to TRICARE were fraudulent. Id. (citing United States v.
Medina, 485 F.3d 1291, 1297 (11th Cir. 2007)). As Fisher argues,
“[t]he principal issue at trial was,” and the principal issue on appeal
is, “whether Fisher knew what Burton was doing; that is, did Fisher
know that the prescriptions were fraudulent.”
“Because the crime of conspiracy is predominantly mental
in composition, it is frequently necessary to resort to circumstantial
evidence to prove its elements.” United States v. Abovyan, 988
F.3d 1288, 1302 (11th Cir. 2021) (quoting United States v. Toler, 144
F.3d 1423, 1426 (11th Cir. 1998)). Indeed, “[g]uilty knowledge can
rarely be established by direct evidence, especially in respect to
fraud crimes which, by their very nature, often yield little in the
way of direct proof.” United States v. Clay, 832 F.3d 1259, 1309
(11th Cir. 2016) (quoting United States v. Suba, 132 F.3d 662, 673
(11th Cir. 1998)). A defendant can be found guilty of participating
in a conspiracy “if the evidence demonstrates that he was aware of
the conspiracy’s essential nature, even if he did not know all of its
details, played only a minor role in the overall scheme, did not have
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21-11879 Opinion of the Court 35
direct contact with other alleged co-conspirators, or did not partic-
ipate in every stage of the conspiracy.” Abovyan, 988 F.3d at 1302–
03 (quoting United States v. Sosa, 777 F.3d 1279, 1290 (11th Cir.
2015)); see also United States v. Reeves, 742 F.3d 487, 497–98 (11th
Cir. 2014).
Viewing the evidence in the light most favorable to the ver-
dict, and based on both the direct and circumstantial evidence de-
scribed below in this case involving a conspiracy to commit health
care fraud, we hold that a reasonable jury could find beyond a rea-
sonable doubt that: (1) Fisher knew of the conspiracy, and (2)
Fisher knowingly and voluntarily joined the conspiracy by submit-
ting claims to TRICARE that he knew were fraudulent. 8
8 While Fisher purportedly appeals all three of his conspiracy convictions, the
arguments in his brief to this Court only focus on his claim that there was
insufficient evidence to support his conviction for conspiracy to commit
health care fraud. Turning to these other conspiracy convictions, the elements
of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, are: (1)
that a conspiracy to commit wire fraud existed; (2) that the defendant knew of
it; and (3) that the defendant knowingly and voluntarily joined it. Feldman,
931 F.3d at 1257. In turn, the elements of conspiracy to commit money laun-
dering, in violation of 18 U.S.C. § 1956(h), are “(1) an agreement between two
or more persons to commit a money-laundering offense; and (2) knowing and
voluntary participation in that agreement by the defendant.” United States v.
Iriele, 977 F.3d 1155, 1174 (11th Cir. 2020) (quoting United States v. Feldman,
936 F.3d 1288, 1307 (11th Cir. 2019)). Relevant to Fisher’s money laundering
conspiracy conviction, money laundering offenses include “the use of a finan-
cial institution to conduct a monetary transaction involving more than $10,000
of illegally obtained funds.” Id. at 1173 (citing 18 U.S.C. § 1957).
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36 Opinion of the Court 21-11879
1. Direct Evidence from Burton’s Testimony
At trial, the most direct evidence of Fisher’s knowledge was
Burton’s testimony that Fisher knew the Dr. Traub prescriptions
had no doctor-patient relationship behind them. Burton, the or-
chestrator of the conspiracy, testified that he told Fisher in their
initial call that Dr. Traub “didn’t actually see the patients” for
which the prescriptions were written. Fisher responded that “as
long as it’s not a problem with the surgeon, I have no problem with
it.” Burton also testified that he discussed “the fact that these pre-
scriptions didn’t have a real doctor/patient behind them” with
Fisher “[m]any times,” and told Fisher that one of Burton’s sales
representatives recruited patients at a bachelor party.
On appeal, Fisher claims Burton’s testimony is insufficient
for two reasons: (1) there was no evidence Fisher knew about
Hodgson’s role in the scheme and “the essence of the govern-
ment’s case was that Fisher supposedly knew all along that Dr.
Traub was oblivious to the scheme that Hodgson and Burton were
perpetrating”; and (2) the government presented no evidence of
Again, Fisher’s arguments on appeal only pertain to whether he conspired to
commit health care fraud. But even presuming that Fisher meant to argue
that all three of his convictions should be overturned because he did not know
of the Burton-Hodgson conspiracy, or because he did not knowingly and vol-
untarily join it, there was sufficient evidence to prove that he did for the same
reasons we find that there was sufficient evidence to convict him for conspir-
acy to commit health care fraud. Therefore, we need not separately address
the sufficiency of the evidence supporting his other convictions, as our analysis
would be the same.
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21-11879 Opinion of the Court 37
what constitutes a valid doctor-patient relationship, and under
Georgia law, it is possible to establish a doctor-patient relationship
without seeing the patient. Both arguments are unpersuasive.
First, it does not matter that Fisher did not know about
Hodgson’s role in the scheme. “[A] defendant can be convicted of
conspiracy if the evidence demonstrates that he was aware of the
conspiracy’s essential nature, even if he did not know all of its de-
tails, played only a minor role in the overall scheme, did not have
direct contact with other alleged co-conspirators, or did not partic-
ipate in every stage of the conspiracy.” Abovyan, 988 F.3d at 1302–
03 (quoting Sosa, 777 F.3d at 1290). Here, the essential nature of
the scheme was submitting prescriptions to TRICARE that were
not made pursuant to a licensed practitioner’s determination that
the prescriptions were medically necessary. And a reasonable jury
could have construed Burton’s testimony to mean that Fisher was
comfortable joining the scheme because Fisher thought a dishonest
doctor, rather than a dishonest doctor’s assistant, was on board
with it and willing to write prescriptions without having a doctor-
patient relationship. See Estepa, 998 F.3d at 908 (“We may not
overturn the jury’s verdict ‘if any reasonable construction of the
evidence would have allowed the jury to find the defendant guilty
beyond a reasonable doubt.’” (quoting Capers, 708 F.3d at 1297)).
Second, as to Fisher’s argument that it was possible for Dr.
Traub to establish a valid doctor-patient relationship through re-
mote consultations without actually seeing the patients, “it is not
necessary that the evidence exclude every reasonable hypothesis of
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38 Opinion of the Court 21-11879
innocence or be wholly inconsistent with every conclusion except
that of guilt” because “a jury is free to choose among the reasona-
ble constructions of the evidence.” United States v. Iriele, 977 F.3d
1155, 1168 (11th Cir. 2020) (quoting United States v. Godwin, 765
F.3d 1306, 1320 (11th Cir. 2014)). And one reasonable construction
of the evidence at trial was that Dr. Traub had no relationship at all
with the relevant TRICARE patients. For example, Burton testified
that Burton discussed “the fact that these prescriptions didn’t have
a real doctor/patient relationship behind them” with Fisher
“[m]any times,” and that he told Fisher that one of his sales repre-
sentatives recruited “patients” at a bachelor party. In hearing testi-
mony that Fisher was told “[m]any times” that Dr. Traub didn’t
have a real doctor-patient relationship with the relevant patients,
and that some of these patients were recruited to be patients at a
bachelor party, the jury was “not required to put aside its common
sense or to assume that [Fisher] ha[d] none.” 9 United States v. Hill,
643 F.3d 807, 863 (11th Cir. 2011). We now turn to the circumstan-
tial evidence presented at trial.
9 Common sense also refutes Fisher’s argument that, because Fisher was not
a doctor or a pharmacist, he could not have been expected to know what was
necessary to establish a legitimate doctor-relationship. Cf. Gonzalez, 834 F.3d
at 1216 (“Gonzalez’s lack of formal nursing or medical training would not have
affected her ability to recognize the suspicious nature of the activities in which
she was engaged.”). Fisher’s argument is also undercut by the circumstantial
evidence discussed in Section III(A)(2).
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21-11879 Opinion of the Court 39
2. Circumstantial Evidence
“It is well settled that the government may prove a conspir-
acy through circumstantial evidence or inferences from the defend-
ant’s conduct.” Abovyan, 988 F.3d at 1303. Here, circumstantial
evidence also supported the verdict. This circumstantial evidence
as discussed below included Fisher’s “gray area” pharmacy prac-
tices, his conduct surrounding the letter affidavits, his (lack-of) re-
sponse to Cowart’s alerting him to suspected fraud, and the evi-
dence elicited at trial that he was trying to cover up the scheme.
We first address the gray area practices.
i. Gray Area Practices
While not illegal in and of themselves, a reasonable jury
could view Fisher’s “gray area” pharmacy practices as showing
Fisher’s willingness to profit off of TRICARE at any cost. For ex-
ample, the government presented evidence that Fisher did not en-
force the co-pay requirement if collecting a co-pay would put the
ability to bill TRICARE for the prescription in jeopardy. And
Fisher admitted to Agent Carmona that he “took advantage” of
TRICARE’s high reimbursement rates by charging as much as he
could, even though he admitted those costs were “inflated.”
Fisher argues that evidence of his lax co-pay policies and use
of expensive ingredients was insufficient to sustain his conviction.
But Fisher concedes that “[t]here was evidence at trial that certain
practices of [Physician Specialty Pharmacy] violated various regu-
latory requirements and policy manuals of TRICARE and [Express
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40 Opinion of the Court 21-11879
Scripts].” And, in addition to other evidence demonstrating that
Fisher knew of, and knowingly and voluntarily joined, the relevant
conspiracy, a reasonable jury could infer that Fisher’s “gray area”
pharmacy practices are consistent with an intent to defraud
TRICARE and to maximize his profits from so doing.
ii. The Letter Affidavit
The evidence at trial showed that Fisher also sent a letter
affidavit to Burton for Dr. Traub to sign, which stated, in relevant
part: “My name is Dr. Jeff Traub. . . . As a treatment for my pa-
tients, I have written compounding prescriptions. In all cases, I
personally met with each patient for whom I wrote a prescription.”
(Emphasis added). And in connection with this letter, Burton tes-
tified that Fisher knew Dr. Traub did not meet with each patient.
Nonetheless, Fisher returned the letter affidavit to Burklow’s attor-
ney to submit to Express Scripts. A reasonable jury could conclude
that this evidence suggested that Fisher knowingly participated in
the conspiracy and that he knowingly tried to ensure that the
scheme would continue without detection.
iii. Fisher’s Response to Report of Suspected Fraud
The evidence presented at trial also showed that Fisher did
not act when Cowart reported a patient’s complaint of suspected
fraud, or when Cowart told Fisher that she suspected that several
patients simply filled out questionnaires provided by Dr. Traub and
were never actually seen by the doctor. A reasonable jury could
infer that Fisher did not investigate the suspected fraud because he
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21-11879 Opinion of the Court 41
already knew of the fraudulent scheme and that Dr. Traub had not
seen the relevant patients. That inference is even more reasonable
given other testimony at trial that the patient who complained of
suspected fraud was one of the patients that was recruited at a bach-
elor party.
iv. Evidence of Cover-Up
We now turn to the circumstantial evidence elicited at trial
regarding a cover-up. A reasonable jury could view Fisher’s deci-
sion to buy Jay Pharmacy, and Fisher’s inconsistent statements to
Agent Carmona, as attempts to cover-up his role in the conspiracy.
McKnight—the operations manager of Physician Specialty
Pharmacy—testified that Fisher purchased Jay Pharmacy in part to
spread out high insurance billing and because “being a small phar-
macy, it probably wouldn’t draw a lot of attention . . . “[f]rom the
insurance companies.” A reasonable jury could conclude that
McKnight’s testimony, in combination with an email Fisher sent
about wanting to purchase other pharmacies because “insurance
companies actively target pharmacies that bill over a certain
amount per month, so having multiple pharmacies billing a lower
amount . . . is an ideal strategy for staying off their radar,” suggested
that Fisher knew of the conspiracy to defraud TRICARE and that
he attempted to conceal it.
Fisher also made inconsistent statements to Agent Car-
mona, which a reasonable jury could view as an attempt by Fisher
to cover up his role in the conspiracy. For example, Fisher told
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42 Opinion of the Court 21-11879
Agent Carmona that he did not know why Burklow Pharmacy lost
its contract with Express Scripts, even though the evidence at trial
demonstrated that Fisher received the DOD letter two months ear-
lier. He also stated to Agent Carmona that his sales representatives
did not recruit patients, but Fisher later told Agent Carmona that
his sales representatives did market directly to TRICARE benefi-
ciaries.
****
Based on this record, our decisions in United States v. Grow,
977 F.3d 1310 (11th Cir. 2020), and United States v. Chalker, 966
F.3d 1177 (11th Cir. 2020), support our conclusion that there was
sufficient evidence to support the verdicts in this case.
The scheme in Grow involved TRICARE patients recruited
to receive “pain creams, scar creams, and vitamins that were not
medically necessary.” 977 F.3d at 1321. The defendant, Grow,
owned a marketing company that employed sales representatives
to recruit TRICARE beneficiaries to receive compound medica-
tions from the pharmacy he worked with. Id. at 1314–15. Grow
would forward patient information to a telemedicine company,
which would arrange for a doctor to “conduct a brief consult—typ-
ically between five and seven minutes, but sometimes as short as
three minutes—and prescribe [the pharmacy’s] creams and vita-
mins.” Id. at 1315. Once a doctor issued a prescription, the tele-
medicine company would fax it to Grow, who would then fax it to
the pharmacy to fill. Id. The pharmacy would mail the
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21-11879 Opinion of the Court 43
prescriptions to the patient and submit a claim for reimbursement.
Id. The pharmacy would charge the patients a co-pay, but Grow
told the patients they did not need to pay their co-pays because the
pharmacy would never collect on them. Id. If the pharmacy did
seek to collect the co-pay, Grow told his representatives they could
pay the co-pay on the patient’s behalf. Id.
In connection with the above-described scheme, Grow was
convicted for, among other things, conspiracy to commit health
care and wire fraud. Id. at 1320. Grow appealed his conviction on
the basis that the evidence was insufficient to support the verdict.
Id. We upheld Grow’s conviction for conspiracy to commit health
care fraud because there was sufficient evidence to support the con-
viction, including “sufficient evidence of Grow’s knowledge of the
fraud and his intent to defraud.” Id. at 1322.
Like Fisher, the evidence showed that Grow pushed the
pharmacy to use a premium ingredient in its compound medica-
tions that was vastly more expensive but otherwise identical to the
regular ingredient. Id. at 1323. This Court determined that “a jury
could reasonably conclude that Grow and [the pharmacy] used [the
expensive ingredient] for no other reason than to fraudulently in-
flate Tricare’s reimbursement rates.” Id. at 1324; see also United
States v. Melgen, 967 F.3d 1250, 1255, 1263 (11th Cir. 2020) (reject-
ing sufficiency of the evidence challenge because there was suffi-
cient evidence of the defendant’s “motive and means for fraudu-
lently billing [an insurance company] for an expensive drug” and
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44 Opinion of the Court 21-11879
the defendant “only rarely prescribed” the equivalent, less expen-
sive drug).
Like Fisher, Grow profited from the fraud. Grow, 977 F.3d
at 1324. As we have explained, “[e]vidence that the defendant prof-
ited from a fraud may . . . provide circumstantial evidence of the
intent to participate in that fraud.” United States v. Machado, 886
F.3d 1070, 1083 (11th Cir. 2018). As such, this Court concluded that
“a reasonable jury could find an intent to defraud from the money
Grow made from billing [TRICARE] for creams and vitamins that
were not medically necessary.” Grow, 977 F.3d at 1324. And, like
Fisher, there was evidence from which a reasonable jury could find
“that Grow and [the pharmacy] were trying to conceal the fraud
scheme.” Id. at 1325. For example, Grow would remove his fax
number from the prescriptions he submitted to the pharmacy be-
cause only doctors were allowed to submit prescriptions to the
pharmacy. Id. at 1324–35. Moreover, when Grow became con-
cerned that there might be an issue with having a pharmacy paying
commissions to independent contractors because it would violate
the anti-kickback statute, Grow and the pharmacy decided that
“everybody had to become W-2 employees.” Id. at 1325; see also
United States v. Davis, 490 F.3d 541, 549 (6th Cir. 2007) (noting that
intent to defraud “can be inferred from efforts to conceal the un-
lawful activity”). Given the similarities between the evidence in
the two cases, here, like in Grow, we conclude that the evidence
was sufficient to support the jury’s verdict.
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21-11879 Opinion of the Court 45
Our decision in United States v. Chalker, 966 F.3d 1177 (11th
Cir. 2020) also supports our holding. The scheme in Chalker in-
volved submitting fraudulent claims to Medicare, Medicaid, and
TRICARE for reimbursement. Id. at 1182. Chalker was the phar-
macist-in-charge of a pharmacy in Florida. Id. The pharmacy,
“with Chalker at the helm, filled medically unnecessary prescrip-
tions for patients who neither wanted nor needed them.” Id. at
1185. Chalker was convicted by a jury for, among other things,
conspiracy to commit health care fraud. Id. at 1182. Chalker chal-
lenged his conviction, among other grounds, on the basis that the
evidence was insufficient to support the verdict. Id. We upheld
the verdict because the government “introduced more than
enough evidence to establish that Chalker knowingly and volun-
tarily participated in the conspiracy.” Id. at 1187.
Similar to Burton’s testimony about Fisher’s role in the
fraud, Chalker’s co-conspirator “admitted that he had conspired
with Chalker to commit health-care fraud.” Id. And, just as
Fisher’s employees testified, Chalker’s co-conspirator testified that
the pharmacy “had a very lax view on co[-]pays and would waive
them quite often.” Id. (internal quotation marks omitted).
Similar to Fisher’s trial system for creating formulas that
would obtain higher reimbursements, “Chalker engaged in test
billing: he ‘would test run different formulations with the insur-
ance companies to see what was covered, what was not covered, if
it was covered, what was the net profit, and if [it] wasn’t high
enough, we would still try to find other formularies that would
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46 Opinion of the Court 21-11879
reimburse higher.’” Id. And just as Fisher submitted the letter af-
fidavit for the Burklow Pharmacy audit, knowing Dr. Traub had
not personally seen all of the patients, Chalker sent a recertification
agreement to a pharmacy benefits manager stating that no owner
of the pharmacy had faced criminal prosecution for fraud, knowing
that it was untrue. Id. at 1188.
“A jury’s verdict cannot be overturned if any reasonable con-
struction of the evidence would have allowed the jury to find the
defendant guilty.” Melgen, 967 F.3d at 1263 (quoting Capers, 708
F.3d at 1297). For the reasons discussed, we hold that there was
sufficient evidence to allow the jury to find Fisher guilty of conspir-
acy to commit health care fraud. Because Fisher relied on his ar-
guments for overturning his health care fraud conspiracy convic-
tion to overturn his other convictions, we need not separately ad-
dress them. See supra n.8.
B. Constructive Amendment
On appeal, Fisher also argues that the district court’s failure
to limit the jury’s consideration of the alleged means of accomplish-
ing the conspiracy amounted to approving a constructive amend-
ment of the indictment. Specifically, Fisher contends that the ad-
mission of the “gray area” evidence at trial amounted to a construc-
tive amendment of the indictment and, therefore, the district court
should have provided a limiting instruction to the jury. 10
The indictment alleged that Fisher conspired to seek reimbursements from
10
TRICARE for fraudulent prescriptions, sought reimbursements for
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21-11879 Opinion of the Court 47
“The Fifth Amendment guarantees that a defendant can be
convicted only of crimes charged in the indictment.” Holt, 777
F.3d at 1261. A constructive amendment occurs “when the essen-
tial elements of the offense contained in the indictment are altered
to broaden the possible bases for conviction beyond what is con-
tained in the indictment.” Id. (quoting United States v. Narog, 372
F.3d 1243, 1247 (11th Cir. 2004)). “The indictment can be ex-
panded, either literally or in effect, by the prosecutor’s actions or
the district court’s instructions.” Id.“A constructive amendment ‘is per se reversible error.’” Id.(quoting Narog, 372 F.3d at 1247 (italics omitted)). But even if
Fisher’s constructive amendment argument has merit, Fisher
waived this argument. Fisher failed to raise this argument when
the court charged the jury, instead waiting until his post-verdict
motion for acquittal and new trial. Generally, we review an unpre-
served constructive amendment claim only for plain error. See
United States v. Maradiaga, 987 F.3d 1315, 1322–23 (11th Cir. 2021);
Holt, 777 F.3d at 1261. But “when a party agrees with a court’s
prescriptions while not seeking to enforce the co-pay requirement that was
part of the TRICARE contract, and directed his employees to use needlessly
expensive ingredients in compound medications to maximize the reimburse-
ments Fisher’s pharmacy could bill to TRICARE. At trial, the government
also presented evidence of Physician Specialty Pharmacy’s: (1) out-of-state
sales of compound medications; (2) delivery of medications to Burton’s home
address in Georgia for patients located out-of-state; (3) use of force-fill orders;
(4) failure to reimburse for returned medications; (5) seeking 90-day refills; and
(6) unconventional central fill set-up with Burklow Pharmacy.
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48 Opinion of the Court 21-11879
proposed instructions, the doctrine of invited error applies, mean-
ing that review is waived even if plain error would result.” Frank,
599 F.3d at 1240. On the last day of trial, before dismissing the jury
to deliberate, the district court asked whether Fisher objected to
the jury instructions, to which his attorney responded, “No objec-
tion, Your Honor.” Fisher has therefore waived his right to chal-
lenge this argument on appeal. Cf. United States v. Fulford, 267
F.3d 1241, 1247 (11th Cir. 2001) (“[H]aving agreed to the court’s
proposed instruction, Gage appears to have waived his right to
challenge that instruction on appeal.”). Because Fisher invited the
error, we need not address the merits of his argument.
IV. CONCLUSION
For all these reasons, we hold that the government pre-
sented sufficient evidence to support Fisher’s conspiracy convic-
tions and that Fisher waived review of his constructive amendment
argument. We therefore affirm Fisher’s convictions for conspiracy
to commit health care fraud, in violation of 18 U.S.C. §§ 1347, 1349;
conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343,
1349; and conspiracy to commit money laundering in violation of
18 U.S.C. §§ 1956(h), 1957, as well as the corresponding sentence
and order of forfeiture.
AFFIRMED.