Journal Title
St. Mary's Law Journal
Volume
53
Issue
1
First Page
129
Document Type
Article
Publication Information
2021
Abstract
When an appellate court goes out of its way to note, not once but twice, that a defendant convicted of fraud and conspiracy was just twenty-two years old and had only a high school degree when he joined a criminal venture, it is probably a safe bet that a reversal is coming. That is exactly what happened in United States v. Nora. The United States Court of Appeals for the Fifth Circuit overturned young Jonathon Nora's conviction for his part in a multi-million-dollar scheme to defraud Medicare. The case is, sadly enough, nondescript as health care frauds go, except for one issue: mens rea. The court's decision muddles the law and has important implications for prosecutors and defendants.
This Article focuses on Nora's implications for proving willfulness in kickback cases. The court reversed Nora's conviction because the government did not establish that he acted willfully-that is, that he "knew that Abide's referral payments constituted illegal kickbacks." To demonstrate willfulness after Nora, the government must show that a defendant knows that referral payments are illegal kickbacks and intends to make them anyway." This holding is problematic for three reasons: First, it contradicts Fifth Circuit precedent that held the opposite. The court overlooked United States v. St. Junius," which held that willfulness does not require the defendant to know that the payments are illegal kickbacks. The panel that decided Nora neither cited nor distinguished St. Junius. Second, the court did not adequately consider the 2010 amendment of the AKS, which provides that "a person need not have actual knowledge of this section or specific intent to commit a violation of this section." By adding this clause, Congress clarified the statute's mens rea element. While the Fifth Circuit mentioned the amendment, it did not reconcile its holding with the new statutory language. Third, the court articulated a willfulness standard that is more demanding than either St. Junius or the amended AKS, leaving prosecutors without clear guidance about the mens rea needed to charge and prove kickback offenses. The decision reinvigorates ignorance of the law as a defense to accountability.
Nora represents a missed opportunity. Instead of clarifying the meaning of willfulness, it prolongs uncertainty, at least in the Fifth Circuit. To understand why, one must look to history. Section I of this Article summarizes key willfulness jurisprudence prior to 2010. Three different formulations of willfulness emerged historically, leading to disparate standards for proving whether defendants in kickback cases acted with the requisite criminal intent. In 2010, Congress stepped in to clarify the mens rea required under the AKS. Section II explains how Congress modified the statute. Section III focuses on willfulness after the 2010 amendment, primarily by contrasting the decisions in St. Junius and Nora. Section IV reflects on Nora's implications for proving willfulness in future kickback cases in the Fifth Circuit.
Recommended Citation
John J. LoCurto, Will the Real Mens Rea Please Stand up: Assessing the Fifth Circuit's Kickback Jurisprudence after United States v. Nora, 53 St. Mary's L.J. 129 (2021).