St. Mary's Law Journal


Many criminal statutes require willful misconduct, yet willfulness remains an elusive concept. Its meaning and application depend as much on the outcome a court desires as the definition or legal standard a court claims to apply. Ambiguity in the required mens rea is an age-old problem with a venerable pedigree in the circuits and Supreme Court. This article considers anew the struggle to define “willfully” as that term is used in the Anti-Kickback Statute (AKS), 42 U.S.C. § 1320a-7b, one of the federal government’s key weapons against health care fraud.

When it decided United States v. Nora and reversed the conviction of a defendant who helped perpetrate a multi-million-dollar health care fraud scheme, the United States Court of Appeals for the Fifth Circuit embraced a stringent standard of willfulness under the AKS. In doing so, the court ignored its own precedent, increased the prosecution’s burden beyond what the law requires, and revitalized ignorance of the law as a defense to criminal accountability. By examining the Fifth Circuit’s willfulness jurisprudence through the prism of United States v. Nora, this article shows that the court muddled the meaning of willfulness, depriving the government, which enforces the AKS, and the health care field, which is regulated by it, of clarity that is essential to the criminal law. While it is important for the Fifth Circuit to adopt a legally tenable account of willfulness, it is even more critical that the court picks an interpretive lane and stays in it.

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St. Mary's University School of Law


Brent A. Bauer