United States v. Monty Ray Grow

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12268
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MONTY RAY GROW,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:16-cr-20893-FAM-1
____________________
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2 Opinion of the Court 21-12268
Before GRANT, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
A jury convicted Monty Grow of defrauding a government
health insurance program that served military personnel and their
families. In his initial appeal, we affirmed Grow’s convictions and
sentences—except as to Grow’s sentence for one count. On re-
mand, the district court lowered Grow’s sentence from 262 months
to 156 months. Grow appeals again, arguing that the district court
erred in (1) denying his new trial motion, (2) repackaging his sen-
tence, and (3) ordering him to forfeit substitute assets. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Indictment
In November 2016, a grand jury indicted Grow for
healthcare fraud. The government later charged Grow in a super-
seding indictment with the following counts:
• Count 1: conspiracy to commit healthcare fraud and wire
fraud, in violation of 18 U.S.C. section 1349;
• Counts 2–8: healthcare fraud, in violation of 18 U.S.C.
section 1347;
• Count 9: conspiracy to pay and receive healthcare kick-
backs, in violation of 18 U.S.C. section 371;
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• Counts 10–14, 17–18, 20, 22–26, 28–33: receipt of
kickbacks in connection with a federal healthcare pro-
gram, in violation of 42 U.S.C. section 1320a-7b(b)(1)(A);
• Counts 36–41, 43–44: payment of kickbacks in connection
with a federal healthcare program, in violation of 42
U.S.C. section 1320a-7b(b)(2)(B);
• Counts 45–49: money laundering, in violation of 18
U.S.C. section 1957; and
• Counts 50–51: misbranding drugs, in violation of 21
U.S.C. sections 331(k) and 333(a)(1)
The Trial
The case went to trial in January 2018. In its opening state-
ment, the government explained that Grow “participated in a
scheme to defraud Tricare tens of millions of dollars.” Tricare was
a “[f]ederal health care program that provide[d] insurance” to mil-
itary personnel and their families. Grow “came up with a pyramid
scheme of kickbacks” to recruit and induce Tricare beneficiaries to
order “expensive drugs that they didn’t need.” In other words,
Grow’s scheme involved paying patients money to obtain expen-
sive prescriptions that they didn’t need. Grow made almost
$20 million from the scheme.
In response, Grow’s lawyer opened by explaining that Grow
was a former National Football League player who became a
“salesperson” and a “marketer” after he was sidelined by an injury.
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The company Grow ran was not a “pyramid scheme” but a “multi-
level marketing company.” Grow’s lawyer told the jury that the
case would be “about intent.” He said that Grow “had one rule:
The patients must need the product.” To the extent that recruits
received medicine they didn’t need, Grow’s lawyer contended that
those recruits were “outliers” and that “mistakes . . . were made.”
The government then presented its case. The first witness
was Ginger Lay. Lay began by stating that she was testifying be-
cause of a “crime [she] committed . . . [w]ith Monty Grow.” She
explained that she entered into a “plea agreement” with the gov-
ernment that required her “to cooperate, to be truthful and submit
documentation.” She admitted that she hoped to get a reduction
in her sentence by testifying, and that she understood that she
“wouldn’t be able to get a reduction” if she lied on the stand.
Lay then described the scheme, explaining that Grow re-
cruited her to sell prescriptions for scar creams, pain creams, and
vitamins—that costed up to $17,000 per prescription. She would
receive forty percent of the profits from the prescriptions she sold
(minus the costs of goods and telemedicine). The scheme, she ex-
plained, involved “find[ing] Tricare beneficiaries, sign[ing] them up
for compounded medications, submit[ting] the prescription to the
telemedicine doctor, hav[ing] it sent to the pharmacy[,] and
get[ting] paid commissions.”
While questioning Lay, the government walked through
documentary evidence. The government presented, for example,
a check Grow paid Lay for her first two weeks of work. The check
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showed that Lay made about $130,000 for about fifteen hours of
work. The government also introduced an email in which Grow
told Lay to “[a]lways use p-01 for pain and s[c]-01 for scar.” Those
codes corresponded to medications with the “highest reimburse-
ment” rates. In another email, Grow instructed one of the tele-
health companies to change a prescription that was already signed.
In a text message to Lay, Grow also wrote that a patient was “re-
fusing meds because of copays” but that Lay should “work[] some-
thing out with him” by telling him that “[h]e doesn’t have to pay”
for the medications and that “[t]hey won’t try to collect.”
Lay also testified about two emails (both admitted into evi-
dence) that a pharmacist sent to Grow. In the first, the pharmacist
asked Grow: “Whose fax number is this? We cannot show outside
fax numbers on these prescriptions. There is a HIPAA concern
around unsecured pathways and patient brokering concerns when
speaking around scripts not coming directly from the doctor.” In
the second, the pharmacist told Grow: “Cannot have MD to you
to us trail.” According to Lay, these emails aligned with Grow’s
instructions to her to “white-out [their] fax number when the doc-
tors faxed [prescriptions] to [her] and [then] fax[] [them] into the
pharmacy” so that it “look[ed] like [the prescriptions] came from
the doctor and not me and not us.”
The defense cross-examined Lay. In doing so, the defense
highlighted Lay’s plea deal: that she was charged “together” with
Grow; that “there were many, many charges” against her; that she
“could have been facing more than [ninety] years in prison”; that
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she pleaded “guilty to one count of health care fraud”; and that, as
a result, “the most [she could] get [was] [ten] years.” Lay also ad-
mitted that she’d met with the prosecution more than once, that
her “cooperation” was part of her deal, and that she provided hun-
dreds of pages of documents to the government.
The government presented fifteen or so more witnesses—
and witness after witness told a similar story. For example, Philip
Snodgrass testified that he was “approached” by someone who
asked him to participate in a “trial” for pain cream where he “would
be given $100 a month.” Snodgrass testified that he wasn’t looking
for a pain cream, scar cream, or vitamins when one of Grow’s rep-
resentatives called him. Instead, he got the creams and vitamins
because he was promised money.
Nichole Powell testified that Grow recruited her to “get[]
other people to get products; pain cream, scar cream and vita-
mins.” She “signed up” for the products herself even though she
“didn’t need the drugs.” Grow told her it was simply “a way to
make money.” Powell received some of the drugs before she spoke
to a doctor. Powell also had her husband sign up for the medica-
tions. Grow paid her a $54,000 commission for her work. Powell
testified that she knew she was doing something wrong “[d]eep
down inside.”
Jill Cichowicz explained that Grow told her about the
creams and said that “everybody could use vitamins.” Grow also
told Cichowicz that she “would receive a commission based on
[her] prescription.” In Cichowicz’s words, she “got paid to do
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nothing.” When she received a $1500 payment in her account for
her first order, a “red flag . . . went up right away.”
Sven Bjerke also “got paid [by Grow] to recruit patients that
had Tricare.” He explained that, because of this arrangement, he
pleaded guilty to “receiving kickbacks.” Grow told him to select
“auto refills . . . so [they] could get more money.” Grow also ex-
plained that he “wouldn’t collect a copay if they didn’t want to pay
for it.” Bjerke would fill out patient intake forms and send them to
Grow. Grow (and an affiliated pharmacy) paid Bjerke about
$110,000 for six months of work. This more than doubled his an-
nual salary for his normal job.
Robin Halliburton testified that she “was charged with con-
spiracy to receive [a] kickback.” She testified that she conspired
with Grow to “[r]ecruit[] Tricare patients.” Halliburton explained
that she “target[ed] Tricare beneficiaries” and “got paid for each
patient that [she] brought to Mr. Grow.” Grow told her to tell pa-
tients “not to worry” about copays. After Halliburton recruited her
first couple of patients, she emailed Grow to ask if she did every-
thing right. Grow responded: “Yes, you are good to go.” He then
explained: “If your two go through as expected, your [seven] per-
cent [payment] will be approximately $4,000 every month that they
get their script filled.” Halliburton said that she thought this
amount of money was “too good to be true” and knew it was
“wrong,” but that she did it anyway “[o]ut of greed.”
The defense also put on a case and Grow took the stand.
Grow testified that he played in the National Football League until
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a knee injury ended his career. At that point, he entered the
healthcare space. Eventually, he created his own company—the
one at the center of this case—which grew to about 130 represent-
atives and 650 patients. Grow testified that he didn’t know how
some representatives came to be “paid on their own prescriptions.”
He also said that “[n]obody was . . . trying to bribe” anyone to buy
medications. Grow claimed that he had no idea that Lay was “of-
fering patients a thousand dollars to receive prescriptions.” And he
said that he had “no intention of violating” any law.
On cross examination, Grow conceded that he never hired
a lawyer to ensure he was complying with relevant laws. Grow
also acknowledged that it was illegal to pay patients. And he said
that, while some representatives were paid for signing themselves
up for medications, that “was an accident.” Grow told the jury
that, when he found out that Lay might be paying patients, he shut
down her payment program. At the same time, Grow said that he
didn’t fire Lay because she “was very convincing in letting us know
that no one had ever been paid.” Grow admitted that some of his
prescriptions sold for “99 percent profit,” and he said that he made
about $13,500 per month on patients who ordered pain cream, scar
cream, and vitamins. Grow agreed that he obtained about $19 mil-
lion through the scheme.
In rebuttal, the government called Jonelle Coronado. Coro-
nado testified that Grow recruited her. While Grow had just told
the jury that he never paid any patient, Coronado testified that
Grow told her on a call that, “if [she] signed up under him,” she
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“would receive the products and then [she] would also get a com-
mission from even [her] own products.” Grow said that, “if [she]
liked them,” Coronado could also sell them to her “other Tricare
friends.” Coronado agreed to buy the products for herself—and, in
return, received a $1800 payment. Eventually, Coronado decided
to stop ordering the prescriptions because she “felt like [she] had
gotten a large amount of money . . . for doing nothing.”
After a seven-day trial, the jury convicted Grow of conspir-
acy to defraud Tricare, substantive healthcare fraud, conspiracy to
pay and receive healthcare kickbacks, thirteen counts of receiving
healthcare kickbacks, and money laundering. 1 He was acquitted
on the remaining counts.
Post-Trial Proceedings
The district court sentenced Grow to 262 months’ imprison-
ment and three years of supervised release. The district court also
ordered $18,856,744 in restitution and later entered an order of for-
feiture based on the jury’s finding that Grow “received (or ob-
tained) $18,856,744” from his offenses.
Grow appealed his conviction and sentence. 2 We affirmed
his conviction on all counts. United States v. Grow, 977 F.3d 1310(11th Cir. 2020). But we vacated Grow’s sentence for count one
1
Those were Counts 1, 5, 9, 10–14, 17–18, 20, 22, 23–26, and 45.
2
Grow also appealed the order of forfeiture but abandoned that challenge on
appeal.
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(conspiracy to defraud Tricare) because the jury only returned a
general verdict for count one—and so the verdict didn’t reveal
whether his sentence for count one could be 240 months (for wire
fraud) or 120 months (for healthcare fraud). Id. at 1330–31. We
explained that, “[o]n remand, the district court must permit the
government to either consent to resentencing based on a maxi-
mum sentence of ten years on count one or elect to retry Grow on
count one with a special verdict.” Id. at 1331. We “remand[ed] for
proceedings consistent with [our] opinion.” Id.Rather than retrying the case, the government chose to pro-
ceed to resentencing. At resentencing, the parties agreed that the
recalculated guidelines range was 188 to 235 months. Grow argued
that the sentencing package doctrine didn’t apply and so his sen-
tence should be 144 months’ imprisonment. The government ar-
gued that the sentencing packaging doctrine did apply and that
Grow’s sentence should be 235 months. The district court con-
cluded that it had the authority to “repackag[e]” Grow’s sentence
after this court vacated part of his sentence and so it could resen-
tence Grow on each count. And it sentenced Grow to 156 months’
imprisonment.
While Grow’s appeal was pending, the government moved
for a first final forfeiture order. Grow did not respond. Five weeks
later, the district court granted the first final forfeiture order, trans-
ferring $1,680,922 and a Porsche to the government. Later, the
government moved (unopposed) for forfeiture of substitute assets.
The district court granted the motion without objection. During
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resentencing proceedings, the government moved for a second or-
der requiring forfeiture of substitute assets. The district court
granted the motion. When substitute forfeiture later came up at a
hearing, defense counsel said there was “nary an objection from
the defense” and that “there’s not going to be one.”
After we remanded this case to the district court, Grow also
moved for document production, an evidentiary hearing, and a
new trial because of alleged Brady and Giglio violations. Grow ar-
gued that three facts about Lay had recently surfaced. First, alt-
hough Lay testified at her change of plea hearing that she had no
prior criminal record, she had, in fact, been convicted of a misde-
meanor. Second, Lay also testified at her plea hearing that she
hadn’t been to a “psychiatrist or a mental institution,” but she had
actually been housed in a psychiatric facility after attempting sui-
cide as a child. Third, Lay had cooperated against others besides
Grow.
The government, for its part, argued that Grow’s motion
should be denied. As to the misdemeanor, it argued that it did dis-
close her conviction to the defense, that Lay did not lie at her
change of plea hearing, and that there was no prejudice in any
event. As to Lay’s mental health history, the government asserted
that it didn’t know about it and that it was not obligated to disclose
that information. As to Lay cooperating against others besides
Grow, the government explained that it disclosed that Lay was a
cooperating witness and turned over all of her interview reports
which identified any potential targets.
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The district court denied Grow’s motion for document pro-
duction, an evidentiary hearing, and a new trial. The district court
found that “there [was] no reasonable probability that the out-
come—a guilty verdict—would have been different” if the evi-
dence had been disclosed. “Grow,” the district court explained,
“testified at the trial and neither the jury nor the [c]ourt believed
his testimony.” “Therefore, even if one of the able defense attor-
neys would have been allowed . . . to cross-examine” Lay about her
prior misdemeanor and her mental health, “the verdict would still
be guilty.” Thus, none of the evidence “undermine[d] confidence
in the verdict.”
STANDARD OF REVIEW
“We review de novo alleged Brady or Giglio violations.”
United States v. Stein, 846 F.3d 1135, 1145 (11th Cir. 2017). “We
review the district court’s denial of a motion for new trial for an
abuse of discretion.” Id. We also review for abuse of discretion
“the district court’s decision not to hold [an evidentiary] hearing
and compel discovery.” Id. at 1151. And we review de novo the
scope of the district court’s authority to resentence a defendant un-
der the sentencing package doctrine. See United States v. Watkins,
147 F.3d 1294, 1296 (11th Cir. 1998).
DISCUSSION
Grow advances three arguments on appeal. First, Grow ar-
gues that he is entitled to a new trial—or at least an evidentiary
hearing and discovery—for the government’s Brady and Giglio
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violations. Second, Grow contends that the district court erred by
repackaging his sentence. Third, Grow asserts that the district
court erred in ordering substitute forfeiture. We take these argu-
ments in turn.
The New Trial Motion
The district court properly denied Grow’s motion for docu-
ment production, an evidentiary hearing, and a new trial. Grow
failed to show that the government violated Brady or Giglio. And
he has not shown that the district court abused its discretion in
denying discovery or an evidentiary hearing.
Brady
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court
held that “the suppression by the prosecution of evidence favorable
to an accused . . . violates due process where the evidence is mate-
rial either to guilt or to punishment.” Id. at 87. To show a Brady
violation, a defendant must establish that:
(1) the government possessed favorable evidence to
the defendant; (2) the defendant does not possess the
evidence and could not obtain the evidence with any
reasonable diligence; (3) the prosecution suppressed
the favorable evidence; and (4) had the evidence been
disclosed to the defendant, there is a reasonable prob-
ability that the outcome would have been different.
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United States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002). “The
burden to show a Brady violation lies with the defendant, not the
government.” Stein, 846 F.3d at 1145 (cleaned up).
To meet the fourth element (materiality), a defendant must
show that “the government’s evidentiary suppressions, viewed cu-
mulatively, undermine confidence in the guilty verdict.” Ham-
mond v. Hall, 586 F.3d 1289, 1306 (11th Cir. 2009) (quotation omit-
ted); see also Kyles v. Whitley, 514 U.S. 419, 434 (1995) (“A ‘reason-
able probability’ of a different result is accordingly shown when the
government’s evidentiary suppression undermines confidence in
the outcome of the trial.” (quotation omitted)).
In this case, Grow contends that the government violated
Brady by failing to disclose that Lay (1) committed a misdemeanor,
(2) suffered from mental health problems as a child, (3) was coop-
erating against others, and (4) perjured herself at her plea hearing
by failing to disclose her misdemeanor and mental health issues.3
But this the evidence does not “undermine confidence in the guilty
verdict.” Hammond, 586 F.3d at 1306 (quotation omitted). The
3
On appeal, Grow argues for the first time that the government also failed to
disclose that “the government had, due to [Lay’s] cooperation, agreed not to
pursue a mandatory forfeiture of $6.3 million.” But the government simply
decided to forgo forfeiture in favor of restitution. Lay earned $6.3 million
when working for Grow. And the government obtained a $6.3 million resti-
tution order against Lay. The government also obtained multiple orders gar-
nishing her assets and recovering substantial funds. Grow’s accusation of a
$6.3 million “payoff” falls flat.
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government presented a compelling case. It presented emails and
text messages in which Grow told his employees to “[a]lways” se-
lect drugs with the highest reimbursement rates and to tell patients
that they wouldn’t “have to pay” copays. In another email, Grow
instructed a telehealth company to change a prescription that was
already signed by a doctor. And in two other emails, a pharmacist
warned Grow that they “[c]annot have MD to you to us trail.”
On top of that, the government presented staggering finan-
cial gains—rewards that Grow’s employees testified were “red
flag[s]” and “too good to be true.” And each witness told the same
story: that Grow and his associates recruited them to buy and sell
unnecessary medications for cash. Grow also chose to take the
stand and in doing so made a case against himself. In the district
court’s words, “Grow testified at the trial and neither the jury nor
the [c]ourt believed his testimony.” Indeed, after Grow told the
jury that he’d never paid a patient, Jonelle Coronado testified (in
rebuttal) that Grow personally told her that she would “get a com-
mission” for ordering medications for herself.
The evidence Grow now points to—evidence that im-
peaches Lay—also adds little to what he already presented at trial.
Grow’s counsel cross-examined Lay at length, highlighting that she
had a strong incentive to lie to minimize her own sentence. To
that end, the defense established that “there were many, many
charges” against Lay; that she “could have been facing more than
[ninety] years in prison”; that she pleaded “guilty to one count of
health care fraud”; and that, as a result, “the most [she could] get
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[was] [ten] years.” Indeed, Lay admitted that she was hoping to get
a sentence reduction by testifying in this case. A few more (uncon-
vincing) pieces of impeachment evidence wouldn’t have changed
the jury’s verdict.
In sum, Lay was a single witness who testified over the
course of a weeklong trial. The trial presented compelling evi-
dence of guilt—including Grow’s own hard-to-believe testimony.
We agree with the district court that Grow, on these facts, failed to
establish any material nondisclosure under Brady.
Giglio
In Giglio v. United States, 405 U.S. 150 (1972), the Supreme
Court held that the “deliberate deception of a court and jurors by
the presentation of known false evidence is incompatible with” due
process. Id. at 153. “Giglio error, a species of Brady error, occurs
when the undisclosed evidence demonstrates that the prosecu-
tion’s case included perjured testimony and that the prosecution
knew, or should have known, of the perjury.” Stein, 846 F.3d at
1147 (quotation omitted). “Giglio also applies where the prosecu-
tor herself made explicit factual representations to the court or im-
plicit factual representations to the jury, knowing that those repre-
sentations were false.” Id. (quotation omitted).
“To prevail on a Giglio claim, a petitioner must establish
that (1) the prosecutor knowingly used perjured testimony or failed
to correct what he subsequently learned was false testimony; and
(2) such use was material, i.e., that there is any reasonable
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likelihood that the false testimony could have affected the judg-
ment.” Ford v. Hall, 546 F.3d 1326, 1331–32 (11th Cir. 2008)
(cleaned up). “The could have standard requires a new trial unless
the prosecution persuades the court that the false testimony was
harmless beyond a reasonable doubt.” Guzman v. Sec’y, Dep’t of
Corr., 663 F.3d 1336, 1348 (11th Cir. 2011) (quotation omitted).
Grow argues that the government violated Giglio in making
two statements in its closing. First, the government told the jury
that “[e]ach of the witnesses that pled guilty and accepted respon-
sibility for their actions told you that they knew what perjury is and
what the consequences could be if they lied under oath.” Second,
the government said: “And who has the most incentive to lie?
Monty Grow.” According to Grow, these statements were false
because Lay committed perjury at her plea hearing and because
Lay had the greatest incentive to lie to preserve her plea deal.
We disagree. For starters, it’s hard to see how either of the
government’s statements were false. As to Lay’s understanding of
perjury, Lay did testify that she understood perjury and the conse-
quences of lying on the stand. As to incentives, Grow did have the
most to lose during his trial. So Grow hasn’t shown that the gov-
ernment offered any false statement. See Maharaj v. Sec’y for Dep't
of Corr., 432 F.3d 1292, 1313 (11th Cir. 2005) (“In the Giglio con-
text, the suggestion that a statement may have been false is simply
insufficient; the defendant must conclusively show that the state-
ment was actually false.”).
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But even if Grow had shown a false statement, there is no
“reasonable likelihood that the false [statement] could have af-
fected the judgment” of the jury. Stein, 846 F.3d at 1149. As the
district court explained, there was “a significant amount of evi-
dence . . . presented at trial against the defendant.” Witness after
witness testified that Grow recruited them as part of a scheme to
pay patients to obtain unnecessary medications. Grow also “testi-
fied himself” and the jury “did not believe him.” In light of the
overwhelming evidence against him, there’s no reasonable likeli-
hood that the government’s statements could have affected the
jury’s judgment. See Occhicone v. Crosby, 455 F.3d 1306, 1311
(11th Cir. 2006) (“To evaluate the significance of the challenged
[statement] on the verdict, we . . . [must] evaluate [the statement]
in light of the totality of the evidence.”).
Because Grow didn’t show that the government’s state-
ments were false—and because the statements were immaterial in
any event—the district court properly found no Giglio violation.
An Evidentiary Hearing and Discovery
Grow also “failed to show [that] the district court’s decision
not to hold [an evidentiary] hearing and compel discovery was an
abuse of discretion.” Stein, 846 F.3d at 1151. Grow’s evidence is
immaterial and so an evidentiary hearing would not further his
claim. See Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1291 (11th Cir.
2016) (affirming the denial of an evidentiary hearing on a Brady
claim because the evidence was “not material”).
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Sentencing Package Doctrine
The district court properly resentenced Grow on remand.
“A criminal sentence in a multi-count case is, by its nature, a pack-
age of sanctions that the district court utilizes to effectuate its sen-
tencing intent consistent with the sentencing guidelines and with
the section 3553(a) factors.” United States v. Fowler, 749 F.3d 1010,
1015 (11th Cir. 2014) (cleaned up). Thus, under the sentencing
package doctrine, when a conviction or sentence “on one or more
. . . counts is vacated,” a district court is generally “free to recon-
struct the sentencing package . . . to ensure that the overall sen-
tence remains consistent with the guidelines, the [section] 3553(a)
factors, and the [district] court’s view concerning the proper sen-
tence in light of all the circumstances.” Id.The district court initially sentenced Grow to 262 months.
In crafting its sentence, the district court explained that “white-col-
lar crime” is a “thinking crime” that is particularly susceptible to
deterrence. It also pointed to Grow’s “lack of remorse,” his enor-
mous financial gains, his “leadership role,” and the harm he in-
flicted on “military families.” When this court later vacated Grow’s
sentence for count one, the district court was “free to reconstruct
[Grow’s] sentencing package” on remand to achieve an appropriate
sentence. Id. That’s exactly what the district court did here by
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20 Opinion of the Court 21-12268
reassessing Grow’s entire sentence—including the counts we af-
firmed—to reach a sentence of 156 months. 4
Grow concedes as much but argues that our limited man-
date prohibited the district court from revisiting anything other
than count one. Not so. We’ve held that it is “presumed that sen-
tences on each count of a multi-count indictment are part of a pack-
age that may . . . be revisited” at resentencing. Id. at 1017 (emphasis
added). And we said nothing in Grow’s first appeal to disturb that
presumption. In particular, we instructed that, “[o]n remand, the
district court must permit the government to either consent to re-
sentencing based on a maximum sentence of ten years on count
one or elect to retry Grow on count one with a special verdict.”
Grow, 977 F.3d at 1331. Once the government chose resentencing,
nothing barred the district court from repackaging Grow’s sen-
tence. There’s no error here.
4
The district court reached Grow’s original sentence of 262 months by sen-
tencing Grow to: 240 months on Count 1, 22 months on Count 5 to be served
consecutively, and 60 months each on Counts 9-14, 17, 18, 20, 22-26, and 45 to
be served concurrently. The district court resentenced Grow to 156 months’
imprisonment on remand by sentencing Grow to: 120 months on Count 1, 36
months on Count 5 to run consecutively, and 60 months each on Counts 9-14,
17, 18, 20, 22-26, and 45 to be served concurrently. In other words, the district
court repackaged the sentence by lowering Count 1 to 120 months and raising
Count 5 to 36 months.
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21-12268 Opinion of the Court 21
Forfeiture of Substitute Property
Grow’s final contention is that the district court erred in or-
dering him to forfeit substitute assets (like boats, cars, and real es-
tate) to satisfy the money judgment against him. This argument
fails because Grow waived it before the district court. “[W]aiver is
the intentional relinquishment or abandonment of a known right.”
United States v. Campbell, 26 F.4th 860, 872 (11th Cir. 2022) (quot-
ing Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004)).
Grow waived his challenge to the district court’s substitute-
asset forfeiture orders for three reasons. First, the district court en-
tered a forfeiture order for $18,856,744 that allowed the govern-
ment to “file a motion . . . to amend [the order] so as to substitute
property” to satisfy the order. While Grow later appealed this for-
feiture order (along with his conviction and sentence), he aban-
doned his challenge to the forfeiture order on appeal. Second, the
government moved for the forfeiture of substitute assets more than
once—and Grow never responded or objected. Nor did he ever
move for reconsideration after the district court granted those mo-
tions. Third, while appearing before the district court, Grow’s
counsel stated that “[f]reedom is more important to [Grow]”—and
so there “was nary an objection from the defense” to the substitute-
asset forfeiture order and “there’s not going to be one.”
As a result, Grow “affirmatively and intentionally relin-
quishe[d]” his challenge to the district court’s substitute-asset for-
feiture orders. Id.USCA11 Case: 21-12268 Document: 36-1 Date Filed: 02/02/2023 Page: 22 of 22
22 Opinion of the Court 21-12268
AFFIRMED.