     Case: 17-20781      Document: 00514704810         Page: 1    Date Filed: 10/31/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                    No. 17-20781                           FILED
                                  Summary Calendar                  October 31, 2018
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CHERYL WALLER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 4:14-CR-171-11


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       A grand jury charged Cheryl Waller with one count of conspiracy to
defraud the United States and to pay and receive kickbacks, in violation of 18
U.S.C. § 371, and one count of payment and receipt of healthcare kickbacks, in
violation of 18 U.S.C. § 2 and 42 U.S.C. § 1320a-7b(b)(1), (b)(2), the “anti-
kickback statute.” On appeal, Waller contends that the district court’s jury
instructions were erroneous because they failed to state that (1) specific intent


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-20781

to defraud and materiality are elements of the anti-kickback statute, and (2)
the Government was required to prove specific intent to defraud with respect
to the conspiracy charge.
      Waller correctly concedes that because she did not object to the
instructions as written, plain-error review applies. See United States v. Willis,
38 F.3d 170, 179 (5th Cir. 1994). On plain-error review, a defendant must show
(1) a forfeited error; (2) that is clear or obvious; and (3) that affected her
substantial rights, which in the ordinary case means that it affected the
outcome of the proceedings. See Puckett v. United States, 556 U.S. 129, 135
(2009). If those three prongs are satisfied, this court can, in its discretion,
remedy the error if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (alterations omitted) (quoting United
States v. Olano, 507 U.S. 725, 736 (1993)). An error in a jury instruction “is
plain only when, considering the entire charge and evidence presented against
the defendant, there is a likelihood of a grave miscarriage of justice” or “it could
have meant the difference between acquittal and conviction.” United States v.
McClatchy, 249 F.3d 348, 357 (5th Cir. 2001) (alterations and citations
omitted) (quoting United States v. Sellers, 926 F.2d 410, 417 (5th Cir. 1991)
and United States v. Anderson, 987 F.2d 251, 256 (5th Cir. 1993)).
      To be plain, an error must be clear under current law at the time of
appeal. United States v. Escalante-Reyes, 689 F.3d 415, 420 (5th Cir. 2012) (en
banc). “There is no plain error if the legal landscape at the time show[s] the
issue [i]s disputed.” United States v. Rodriguez-Parra, 581 F.3d 227, 230 (5th
Cir. 2009). There is no controlling authority expressing that the anti-kickback
statute requires specific intent to defraud or materiality. Given the absence of




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                                       No. 17-20781

law supporting her position, Waller cannot show a clear or obvious error. 1 See
United States v. Segura, 747 F.3d 323, 330 (5th Cir. 2014).
       AFFIRMED.




       1Waller’s claim that specific intent to defraud is required for conspiracy fails for the
same reason, because “[t]he government must prove the same degree of criminal intent as is
necessary for proof of the underlying criminal offense.” See United States v. Dadi, 235 F.3d
945, 950 (5th Cir. 2000).


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