     Case: 10-20586     Document: 00511526059         Page: 1     Date Filed: 06/30/2011




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

                                                                            FILED
                                                                           June 30, 2011

                                       No. 10-20586                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

SYLVIA SMITH,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-420-2


Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
        Sylvia Smith was convicted for submitting false Medicare claims for
Ensure-brand feeding formula. At trial, evidence showed that the claims were
actually for Glucerna-brand formula. Smith argues this discrepancy between
the evidence and the indictment was a constructive amendment requiring
reversal of her conviction. We AFFIRM.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20586

                           STATEMENT OF FACTS
      Sylvia Smith was indicted on six counts of health care fraud, in violation
of 18 U.S.C. §§ 1347 and 2, and an associated conspiracy count. Counts five and
six charged Smith with submitting false Medicare claims for “Enriched Ensure
and Feeding Kit[s]” for two patients. Evidence at trial established that the
Medicare claims Smith filed for these patients were actually for Glucerna, not
Ensure. The two brands of feeding formula have slightly different formulas and
separate Medicare billing codes. Glucerna is billed at a slightly higher price.
Otherwise, the brands are largely interchangeable.
      This discrepancy went unnoticed until jury deliberations, when the jury
sent the following note:
      The jury has a question regarding . . . specifically Counts 5 & 6. The
      ‘Description of Items Billed’ in both counts specifically mentions
      Enriched Ensure. After reviewing [the patients’] files, it comes to
      light that both patients were not provided Ensure, but Glucerna.
      Does this difference affect the validity of both counts[?]
Over Smith’s objection, the court responded, in part:
      It is not necessary . . . that the government prove all of the details
      alleged in the indictment concerning the precise nature of the
      alleged scheme. What must be proven beyond a reasonable doubt
      is that the accused knowingly executed or attempted to execute a
      scheme that was substantially similar to the scheme alleged in the
      indictment.
      Smith objected that the court’s instruction was a constructive amendment
of the indictment. According to Smith, “The government charged Ensure. They
need to prove Ensure.” The jury returned a guilty verdict on all counts. A
timely appeal followed.
                                 DISCUSSION
      Smith argues that allowing the jury to convict based on evidence showing
false claims for Glucerna, when the indictment charged Ensure, was an
impermissible amendment of the indictment.         This court reviews de novo

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                                  No. 10-20586

whether there has been a constructive amendment. United States v. McMillan,
600 F.3d 434, 450 (5th Cir. 2010).
      “After an indictment has been returned, its charges may not be broadened
through amendment except by the grand jury itself.” Id. (quotation marks,
brackets, and citation omitted). Not all variations between allegation and proof,
however, “rise to the level of a constructive amendment.” United States v. Millet,
123 F.3d 268, 272 (5th Cir. 1997).
      A constructive amendment occurs when it permits the defendant to
      be convicted upon a factual basis that effectively modifies an
      essential element of the offense charged or permits the government
      to convict the defendant on a materially different theory or set of
      facts than that with which she was charged.
McMillan, 600 F.3d at 451 (quotation marks and citation omitted).
      If a variance does not modify an essential element of the offense, it is
evaluated for harmless error. United States v. Adams, 778 F.2d 1117, 1123 (5th
Cir. 1985). According to that standard, a defendant must show that the variance
in the language between the indictment and the jury charge severely prejudiced
his defense. United States v. Scher, 601 F.3d 408, 411 (5th Cir. 2010).
      The parties dispute whether Smith properly objected at trial. Regardless
of the review standard, though, there was no constructive amendment. The
“essential elements” required to prove health care fraud are that the defendant
defrauded a health care benefit program or obtained money or property from a
health care benefit program by means of false representation. See 18 U.S.C. §
1347. The government’s theory was that the Medicare claims were false because
they listed treatments that were not medically necessary or that were not
actually provided to the patients. Substituting one brand of feeding formula for
another did not require the government to adopt a different legal theory to prove
any element of its case.



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                                 No. 10-20586

      There is no possibility that Smith was convicted of a crime separate from
the one charged in the indictment, as the evidence and the indictment both
described the same act. In fact, the indictment contained a “misdescription of
the same identical [offense]” as the fraud described at trial, a difference that
does not rise to the level of a constructive amendment.        United States v.
Chambers, 408 F.3d 237, 245 (5th Cir. 2005).
      Smith has failed to establish that the minor discrepancy between the
indictment and evidence presented at trial severely prejudiced her defense. See
Scher, 601 F.3d at 411. The indictment was sufficient to give her notice of the
charges against her and the evidence that supported those charges. See, e.g.,
United States v. Shah, 44 F.3d 285, 296 (5th Cir. 1995). Smith has not shown
that the error in any way hampered her in preparing a defense.
      AFFIRMED.




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