                Case: 11-10026       Date Filed: 11/28/2012      Page: 1 of 3

                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                              ________________________

                                    No. 11-10026
                              ________________________

                     D.C. Docket No. 1:08-cr-00006-WLS-TOL-1


UNITED STATES OF AMERICA,

                                                           Plaintiff ! Appellee,

                                            versus

J. HARRIS MORGAN, JR.,

                                                           Defendant - Appellant.


                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Georgia
                            ________________________
                                  (November 28, 2012)

                         ON PETITION FOR REHEARING

Before JORDAN, and HILL, Circuit Judges, and EDENFIELD,* District Judge.
________________________
       *Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
              Case: 11-10026     Date Filed: 11/28/2012   Page: 2 of 3

PER CURIAM:

      After a jury trial, defendant-appellant J. Harris Morgan, Jr. appealed from

his conviction on sixty-nine counts of health care fraud. His appeal was placed on

a non-argument calendar, and a panel of this court affirmed Morgan’s convictions

in an unpublished opinion dated November 30, 2011. United States v. Morgan,

452 Fed.Appx. 866, 20911 WL 5965789 (C.A.11 (Ga.)).

      Morgan filed a petition for rehearing, and on January 26, 2012, this court

granted Morgan’s petition, vacated the prior panel opinion, and set his appeal for

oral argument. Having now heard oral argument in this case, and carefully

reviewed the record, the briefs, and the arguments of counsel, this court now

reinstates the prior panel’s opinion in full, reported at 452 Fed.Appx.866,

affirming Morgan’s convictions on sixty-nine counts of health care fraud.

      OPINION AND JUDGMENT OF CONVICTIONS REINSTATED AND

AFFIRMED.




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                 Case: 11-10026   Date Filed: 11/28/2012    Page: 3 of 3

JORDAN, Circuit Judge, concurring in part and dissenting in part:

      I agree with my colleagues that the evidence was sufficient to support Mr.

Morgan’s convictions. In my view, however, two combined errors entitle Mr. Morgan

to a new trial. First, although there is no per se rule regarding the failure to give a

good-fath instruction, see United States v. Sirang, 70 F.3d 588, 594 (11th Cir. 1995),

this is one of those cases where the general instruction on the elements of the offense

was insufficient. The district court, as I see it, should have given a good-faith

instruction. See, e.g., United States v. Lewis, 592 F.2d 1282, 1286-87 (5th Cir. 1979)

(holding, in a forgery case, that the jury instructions on intent to defraud failed to

adequately convey the defendant’s good-faith defense, and as a result the failure to

give a good-faith instruction constituted reversible error). Second, I do not think that

the improper admission of the Rule 404(b) evidence was harmless. This was a

relatively close case, and the mere fact that the evidence was sufficient to convict

does not mean that the error was harmless, particularly in light of the absence of a

good-faith instruction. See United States v. Hand, 184 F.3d 1322, 1329 (11th Cir.

1999) (“An error may substantially influence an outcome and thus warrant reversal

even if the evidence, had no error occurred, would have been sufficient to support the

conviction.”).




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