United States v. Sherley Beaufils

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13292

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHERLEY L. BEAUFILS,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 1:20-cr-00063-DHB-BKE-1

____________________

Before ROSENBAUM, NEWSOM, and ABUDU, Circuit Judges.

ABUDU, Circuit Judge:

Sherley Beaufils is a nurse practitioner who was found guilty

by a jury of sixteen counts of criminal conduct related to a Medi-

care fraud scheme and sentenced to 87 months’ imprisonment.

The fraudulent scheme involved submitting thousands of

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2 Opinion of the Court 22-13292

prescriptions for neck and knee braces, generally covered as dura-

ble medical equipment (“DME”) under Medicare, for patients who

were not actually examined or treated by the appropriate

healthcare professional as required by law.

On appeal, Beaufils first challenges the sufficiency of the ev-

idence of the essential “knowing” and “willing” elements for all six-

teen of her convictions. Second, she contends the district court

erred by failing to give a jointly requested jury instruction on delib-

erate ignorance. Third, she challenges the district court’s denial of

her postconviction motion for a new trial. Finally, she challenges

the district court’s imposition of a two-level obstruction of justice

sentencing enhancement for perjury.

After careful review of the record and with the benefit of

oral argument, we affirm Beaufils’s convictions and sentence.

I. FACTUAL BACKGROUND & PROCEDURAL

HISTORY

In 2018, Sherley Beaufils was a registered nurse practitioner

working at Piedmont Newton Hospital when she took an addi-

tional part-time job with a telemedicine company, Royal Physi-

cians Network (“RPN”), and later, another telemedicine job with

EnVision IT Perfect (“EIP”). According to Beaufils, she was tasked

with reviewing patient charts for written orders for DMEs and

would be paid twenty-five dollars per chart. The orders for DME

were billed to Medicare, a federal health program that, in certain

cases, covered DME like neck and back braces.

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During the period at issue, people who qualified for Medi-

care, known as beneficiaries, were assigned a unique identifier

called a Medicare Beneficiary Identifier, which a provider had to

submit to make a claim to Medicare for the order. For Medicare to

cover the cost of DME, a patient needed to be assessed by a doctor

or other licensed medical practitioner, and a licensed practitioner

then had to write an order, or prescription, for that DME. See

42 C.F.R. §§ 410.38, 424.510. Any treatment plan must have been

documented in the ordering provider’s medical records for that pa-

tient. If the patient’s medical record included a treatment plan, but

did not document a licensed treating practitioner, such as a doctor

or nurse practitioner, then Medicare did not provide payment.

Medicare also mandated compliance with scope-of-practice re-

quirements in order to pay for claims. To that end, nurse practi-

tioners must have worked under a supervising physician or a col-

laborating physician, and the scope of the nurse’s practice was lim-

ited to that physician’s specialty area. See 42 C.F.R. § 410.75;

O.C.G.A. § 43-34-25. As part of the enrollment application to be-

come a Medicare healthcare provider, the practitioner had to attest

they understood that, under the Anti-Kickback statute, 42 U.S.C.

§ 1320a-7b, deliberately omitting, misrepresenting, or falsifying in-

formation in any communication to Medicare was punishable by

criminal, civil, or administrative penalties.

Medicare also only paid for telemedicine services if a patient

lived in a medically underserved area—for instance, a rural part of

the country. However, even with telemedicine, the patient and

provider still needed to have had a live conversation, whether over

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the phone or through videoconferencing. See 42 C.F.R. §§ 410.78,

410.38. Medicare did not pay for DME absent compliance with the

medical visit provisions.

In 2018, the Federal Bureau of Investigation (“FBI”) and the

U.S. Department of Health and Human Services (“HHS”) were

conducting a nationwide joint investigation into Medicare fraud

schemes, known as “Operation Brace Yourself.” Beaufils’s dra-

matic spike in DME claims, coupled with inconsistent records re-

garding medical appointments, caught their attention. The federal

investigation targeted telemarketers who would contact Medicare

patients to obtain their medical information and then sell that in-

formation to brokers. The brokers would then collaborate with

telemedicine companies to prepare prescriptions for medical de-

vices with the signature of a medical professional. The brokers sold

the patient information and prescription orders as a package to

DME companies, which in turn submitted receipts to Medicare for

reimbursement, in violation of federal anti-kickback laws. The in-

vestigation targeted those individuals who played any role in the

scheme.

FBI Special Agent Douglas Dye learned that Beaufils, along

with the rest of the participants in the scheme, were using an inter-

net-based platform called DMERx to generate DME orders.

DMERx, an internet-based portal for electronic medical records,

was a “one-stop shop” for providers to obtain all the required in-

formation and medical documentation to submit DME sales to

Medicare for reimbursement.

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Agent Dye reviewed all of Beaufils’s DME orders made

through the DMERx platform, as well as the backup medical rec-

ords to support her orders, and found she placed thousands of or-

ders solely for braces. He also uncovered that the patients were

not being assessed by doctors or medical professionals at the ad-

dresses listed on the medical records or by attending tele-appoint-

ments, as required by law and as Beaufils attested to on the signed

orders. Furthermore, Agent Dye found orders were often placed

in “clusters” whereby multiple orders that included medical and as-

sessment records were generated and electronically signed within

minutes, even though it would be impossible for a medical profes-

sional to perform the proper assessment in that time. He identified

several instances of specific Medicare beneficiaries who were im-

properly prescribed a brace. Some of those examples included: (1)

Beaufils signing an order for a knee brace even though the benefi-

ciary’s leg had already been amputated below the knee; (2) her or-

dering another beneficiary one back, two knee, one shoulder, and

one wrist brace even though the patient was bedridden; and (3)

“cluster” orders involving multiple beneficiaries all submitted very

close in time and, in some instances, within just a few minutes of

each other.

On February 23, 2021, a federal grand jury returned a super-

seding indictment against Beaufils charging her with one count of

conspiracy to commit wire and health care fraud under 18 U.S.C.

§§ 1349, 2326(1) & (2) (Count 1); five counts of health care fraud

under 18 U.S.C. §§ 1347, 2, 2326(1) & (2) (Counts 2–6); one count

of conspiracy to receive illegal kickbacks under 42 U.S.C. § 1320a-

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7b(b)(1), and to make false statements relating to healthcare mat-

ters under 18 U.S.C. § 1035, all in violation of 18 U.S.C. § 371

(Count 7); five counts of making false statements relating to

healthcare matters under 18 U.S.C. § 1035(a)(1) & 2 (Counts 8–12);

five counts of aggravated identity theft under 18 U.S.C. § 1028A

(Counts 13–17); and one count of making false statements to a de-

partment or agency of the United States under 18 U.S.C. § 1001

(Count 18). 1 Beaufils pled not guilty, and the case proceeded to

trial.

A. Trial Evidence Relevant to Appeal

On appeal, Beaufils only challenges the sufficiency of the ev-

idence at trial with respect to whether she knowingly engaged in

any criminal activity. To that end, we focus our summary of the

evidence on the facts relevant to that inquiry.

i. Testimony of fraud investigator Stephen Quindoza

First, the government called Stephen Quindoza, a private

fraud investigator with whom the federal government contracted.

He testified in part to the following. While working for the tele-

medicine companies, Beaufils was assigned 942 patient records to

review and input claims for, but she never directly submitted any

Medicare reimbursement claims for 934 of these patients. Instead,

she would order DME without filing a Medicare claim. Beaufils

ordered 3,800 items of DME, around four braces a patient. These

1 The government dismissed Count 18 prior to trial, and it was not presented

to the jury.

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DME items, consisting particularly of orthotics, were sent to fifty-

seven different suppliers. The total bill by these fifty-seven different

suppliers was over $3.1 million, with Medicare reimbursing over

$1.6 million back to those suppliers.

Of those 942 patients, 543 patients received a lower back

brace, and Medicare paid the suppliers just over $427,000 for those

braces alone. While Medicare allowed for providers to bill for var-

ious types of back, knee, and wrist braces with varying features for

different injuries and treatments, Beaufils consistently only ordered

one particular type of each brace, which was unusual and indicated

that the order was not individualized. Additionally, before March

2015, she never ordered any braces.

Quindoza stated the majority of Beaufils’s listed patients

lived at least 60 miles from her registered practices, which was “un-

usual.” Quindoza also discussed the Medicare claims he found that

corresponded with the five Medicare beneficiaries who ended up

becoming the bases for the five substantive counts of health care

fraud. He described Beaufils’s orders for multiple DMEs for each

of those beneficiaries, referred to in this opinion as (1) P.W.; (2)

K.M.; (3) G.S.; (4) J.B.; and (5) J.T.

ii. Agent Dye

Next, Agent Dye testified as follows regarding his findings

during the “Operation Brace Yourself” investigation and about

Beaufils’s specific role. He found numerous issues with the docu-

ments he reviewed and used the DMERx and patient records of a

patient named Jessie Kimbrough to illustrate the types of

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deficiencies he discovered. That patient record listed Beaufils, in-

cluded her nurse practitioner identification number, and contained

exam notes that indicated that Kimbrough wanted to utilize or-

thotic bracing for her back, knee, and shoulder pain, with the treat-

ment goal to increase the performance of activities of daily living

and to increase Kimbrough’s overall quality of life. The document

contained the statement, “[b]ased on my discussion with Jessie

Kimbrough and evaluation of her condition, I am ordering the fol-

lowing item,” as well as the following attestation, “I, Sherley L.

Beaufils, NP, do hereby attest that the above information is true,

accurate, and complete to the best of my knowledge. I hereby af-

firm this documentation as part of this patient’s medical record.

Electronically signed by Sherley L. Beaufils, NP, on December 8,

2018, at 12:59 p.m. Eastern Standard Time.”

Beaufils signed this order. A Miami-based medical supply

company submitted this signed claim, which listed Beaufils as the

ordering provider, to Medicare for reimbursement. Medicare re-

jected this claim, however, because Kimbrough was deceased.

Kimbrough had been in hospice, where she was “lethargic, unable

to follow any commands,” completely dependent on her caregiver,

nonverbal and, as of December 4, 2018, sleeping for twenty-two

hours or more per day. Kimbrough died on December 8, 2018,

around 1:15 AM, twelve hours before Beaufils signed her order.

Beaufils’s records did not mention that Kimbrough was dying or in

hospice.

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Overall, Beaufils signed multiple orders that were incon-

sistent with each other. For example, in two orders for the same

person, the patient’s listed weight showed a difference of 100

pounds and the order identified different causes for the pain and

provided conflicting information on the patient’s surgeries for the

same health issue. This record had the following attestation from

Beaufils:

I, Sherley L. Beaufils, verify and confirm this order for

the above-named patient and certify that I have per-

sonally performed the assessment of the patient for

the prescribed treatment and device and verify that it

is reasonably and medically necessary according to ac-

cepted standards of medical practice within the com-

munity for this patient’s medical condition. I hereby

affirm this documentation as part of this patient’s

medical record.

Agent Dye also testified to examples of a “cluster” pattern in

brace orders, including one batch of ten-page orders for two differ-

ent patients, two different sets of medical records, and two differ-

ent sets of tests that were generated and electronically signed just

one minute apart. Beaufils signed “cluster” orders shortly after re-

ceiving an email from Tommorra Hackler at RPN that advised her

that she had charts ready in the DMERx portal and that were over-

due for the 24- to 48-hour turnaround time period. In particular,

on one such patient record, Beaufils attested that she conducted a

diagnostic examination of and tests on the patient and that, per a

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conversation with the patient, she determined the patient needed

the same model of back brace that she had ordered for other pa-

tients. Six minutes after she placed that order, she placed another

order, which described multiple diagnostic examinations and a

conversation with that patient, and then she placed three more or-

ders for different patients. Shortly after receiving the prompt from

Hackler and signing the records, Beaufils replied through her

email: “Done.”

Agent Dye then testified to evidence that Beaufils was, in

fact, reading the statements made in the DMERx portal, as well as

the orders she was signing, including that she emailed her telemed-

icine company asking for completion on a DMERx file that was

missing a key component of the exam. She also corrected an order

issued through a different order platform, EchoSign, where she had

mistakenly been referred to as “Dr. Sherley Beaufils.” Agent Dye

explained that these actions showed that Beaufils did not have

“confusion” that these orders were other people’s patients and

other doctors’ orders. For instance, she had replied to at least one

person, saying “[t]hank you for reaching out. Per your request I

have reviewed and signed the prescriptions.” He also pointed to

an email from EIP that indicated that a brace had already been sold

at the time Beaufils was being instructed to complete the related

forms and, thus, Beaufils had knowledge that the orders were

fraudulent.

After interviewing some of Beaufils’s patients, it became

clear to Agent Dye that Beaufils’s patients were not being assessed

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by medical professionals either in person or virtually, and none of

the assigned patients had spoken to her on the phone. Beaufils’s

records from her Google account also showed that she had

watched two videos, “DMERx Knee Pain” and “DMERx Free

Cash,” on May 18, 2018, shortly after she started completing physi-

cian orders in the DMERx portal. Beaufils’s bank records reflected

a pattern of deposits from EIP of one or two thousand dollars every

other week, which equaled approximately $25 per brace that she

ordered for patients.

Agent Dye also testified about evidence that showed Beau-

fils was aware her actions were unlawful. According to Beaufils’s

credentialing application for the State of Georgia, she was asked

specifically about the statute, and was warned against receiving,

and given examples of, illegal kickbacks. One example given in the

application explicitly mentioned profiting from referring patients

to a DME company. Beaufils signed this document. According to

her collaborative practice agreement, Beaufils was limited to prac-

ticing in the emergency department at Spalding Regional Medical

Center in Griffin, Georgia, and she could not practice beyond the

scope of the authorizations given in the agreement. Beaufils, her

supervising physician, and another designated physician signed this

agreement. The address that appeared on Beaufils’s DMERx or-

ders was for Wellstar, the hospital system that owned Spalding Re-

gional, but it was a different address from the Spalding Regional

Hospital. Wellstar’s records custodian looked through their sys-

tem to determine whether any of the patients that Beaufils ordered

braces for were patients at Wellstar, and the custodian found no

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records of examinations or office visits at any Wellstar locations for

the patients on the specified dates.

Finally, Agent Dye testified as to the five Medicare benefi-

ciaries for whom payment was sought, which provided the basis

for the charges against Beaufils and her co-conspirators. As to

P.W., records showed an exam date of October 12, 2018, for

“[k]nee pain, back pain, shoulder pain, and wrist hand pain” and

that Beaufils had evaluated P.W.’s knee and discussed P.W.’s knee

pain with her. However, per an interview with P.W. and per her

medical records, P.W.’s left leg had been amputated below the

knee six months before Beaufils indicated that she had performed

diagnostic examinations on P.W.’s knee. As to G.S., who did not

appear at the trial because, according to her husband, she was on

her deathbed, Beaufils ordered “one back brace, two knee braces,

one shoulder brace, [and] one wrist brace,” the maximum number

of braces, which the conspirators referred to as “the Iron Man.” As

to K.M., Beaufils submitted the order five minutes after putting in

an order for a different patient. Similarly, the order for J.B. was

part of a cluster of four different orders for four different patients,

all transmitted within the span of eight minutes. Beaufils also or-

dered braces for J.B. through a second platform. The first order for

J.T. occurred three minutes after an order for a different patient

and occurred in a cluster of four patient orders that Beaufils com-

pleted in eight minutes.

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iii. Testimony of co-conspirators

The government presented the testimony of two partici-

pants of the fraud scheme who were investigated and eventually

pleaded guilty to charged offenses. First, Jonathan Tanner, a “bro-

ker,” testified that, as part of the scheme, he paid a company called

R&L Senior Marketing, and his understanding was that part of this

payment was to compensate Beaufils for her role in ordering the

braces. His DME companies would then submit claims to Medi-

care for the braces Beaufils ordered. On cross examination, Tanner

testified that, while he had purchased several of the orders that

Beaufils authorized, he did not know her personally, had never had

any contact with her, and had never paid her directly.

Second, the government called Dr. Jawad Salim, who

pleaded guilty to charges based on conduct similar to Beaufils’s al-

leged violations. He testified that he would log in to the DMERx

portal to access a list of patients with medical needs. When Salim

selected a patient, the system would pull up their file, which in-

cluded a summary of their primary medical complaint (such as

back or knee pain), demographic information, and insurance infor-

mation. The DMERx portal would then prompt him to describe

the etiology of the medical complaint and provide information

about the physical examination he conducted on the patient.

Salim’s information would then be prepopulated. The system

would not allow him to sign and submit the orders without com-

pleting every one of the blank fields of the online medical form,

including fields like “notes for the examining clinician,” and

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“patient exam request.” Even if Salim did not perform a medical

examination, he still had to complete that section. Finally, Salim

would have to attest that the information he inputted about the

patient was true, that he had the proper medical license, and that

he had a valid provider-patient relationship.

iv. Testimony from patients and caretakers

K.M. testified that she was not Beaufils’s patient, Beaufils

never examined or treated her, and she never visited Beaufils’s

medical practice in Atlanta. Further, K.M. had never seen the

DMERx document regarding her. That document, at the top, said

“Provider Sherley L. Beaufils,” and K.M. explained there were mul-

tiple incorrect statements in the document, including her weight

being wrong and that she sustained injuries from long-distance run-

ning and playing volleyball, activities in which she never engaged.

K.M. testified that she received a back brace in the mail that she

had not ordered, and that she never gave Beaufils permission to use

her name or other information in those records.

Similarly, J.B.’s daughter, Christy B., her primary caretaker,

testified that, in 2018, some orthotic braces arrived at her mother’s

home that her mother had not ordered, but that her mother had

received a call regarding her pain. Christy maintained that, before

the braces arrived, Beaufils had never examined J.B., J.B. had never

visited Beaufils at the medical practice, J.B. had never received any

type of consultation on the phone or a video conference with Beau-

fils, and Christy did not recognize Beaufils. Christy testified that,

to her knowledge, Beaufils had never conducted any of the

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documented tests on her mother’s left and right knees. Moreover,

in 2018, J.B. was mainly confined to a wheelchair, and her ability to

walk was “very, very, very limited.”

G.S., P.W., and J.T.’s primary physicians, who were not in-

volved in the fraud scheme, testified regarding their respective pa-

tients’ specific diagnoses and treatment plans, none of which in-

cluded orthopedic braces from Beaufils. They also confirmed that

several aspects of the DMERx records were inaccurate, including

those patients’ medical histories and diagnoses.

Dr. Jehangir Pirzada, an emergency medicine physician, tes-

tified that he worked at Wellstar Spalding in Griffin, Georgia,

where he supervised other medical practitioners, including Beau-

fils, from 2016 to January 2018. He confirmed that no orders Beau-

fils wrote for orthopedic braces between February 2018 and April

2019 were done under his supervision.

v. Beaufils’s trial testimony

Beaufils testified in her own defense as follows. She became

involved in telemedicine after receiving a phone call from a re-

cruiter who was seeking individuals to review charts that a physi-

cian had already completed, with Beaufils reviewing the charts

only for consistency. This recruiter represented RPN and EIP, and

she was Beaufils’s only contact with either company. Beaufils’s un-

derstanding of her job description was that she was supposed to

review charts that already had been completed by other physicians

and that those physicians would sign the charts after her review.

She reviewed the charts when she had the time to do it, received

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$25 per chart that she reviewed, and was paid about every two

weeks. Prior to this arrangement, she did not have any knowledge

of the DMERx platform.

She testified that when she would log in to the DMERx por-

tal, the charts would already contain the patient’s demographic

data, and the provider assigned to the patient would already be en-

tered into the system. RPN did not ask her to be a provider for

these patients. The patient’s chart also would describe the patient’s

medical condition, as well as any examinations that were done.

Beaufils testified that she did not obtain the patients’ medical com-

plaints directly from them, nor did she perform the examinations.

She never accessed any charts on the DMERx portal that did not

already contain the patient’s medical information, and all of the pa-

tients’ charts had providers that were assigned to them. Beaufils

said that no one from the RPN or EIP told her that they were com-

mitting health care fraud, and she had no reason to believe that

these patients came from “brokers.”

After reviewing charts for about 12 months, Beaufils re-

ceived a call from the insurance company Cigna requesting more

documentation for a claim that did not list a supervising physician.

She followed up by trying to contact someone at RPN because she

felt like her license was “in jeopardy,” as she could not be the sole

provider on anyone’s claim. She then spoke with Charlene Frame,

the owner of RPN, who informed Beaufils that the person who had

recruited Beaufils had been terminated because of fraudulent activ-

ities. According to Beaufils, Frame reassured her that, after

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Beaufils’s review, the charts were returned to the physicians for a

final review and attestation. Frame’s assistant then wrote Beaufils

a lengthy email stating that Beaufils should not review charts for

two of RPN’s providers that Beaufils did not know. Beaufils said

she left RPN because she never received a clear answer as to why

she had been listed as the sole provider on the charts Cigna refer-

enced.

Beaufils also testified that her “biggest concern” with the

charts RPN produced was who they listed as the primary provider

and whether every entry made by different providers was properly

attributed to them. She asserted that her role was to review the

charts for inconsistencies like grammatical errors and whether the

chief complaint aligned with the basis for the patient’s treatment.

She maintained that she did not critique a provider’s chosen treat-

ment or make her own independent assessment as to the medical

necessity for the DME ordered. In total, she alleged that she re-

ceived between $37,000 and $38,000 working for RPN over a 14-

month period.

On cross examination, Beaufils admitted that she never con-

tacted the patients listed on the charts she reviewed. She also

acknowledged that her name was listed in at least one medical

chart next to the word “Provider,” and the attestation signature

line shows her name as well. She testified that, although no other

provider was named on the record, she thought that the final doc-

umentation was supposed to include an attestation from “every-

one” who accessed the record. Initially, she stated that the

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18 Opinion of the Court 22-13292

provider’s name appeared on the portal she viewed, but she later

changed that testimony to say that the provider’s name for record-

keeping purposes appeared within the chart.

When asked about an email in which she wrote, “I have re-

viewed and signed the prescriptions,” Beaufils testified that “sign-

ing it, that’s part of the job because it’s outlined with the assess-

ments . . . . [T]herefore, yes I am signing the chart that you’ve as-

signed me to review.” She emphasized that she reviewed and

signed the entire chart, which included prescriptions for braces.

She asserted that, under law, a medical doctor had to give her au-

thorization for any prescription and, therefore, they had to attest

to the final review of the documents. When asked about the in-

consistencies between what the medical documentation claimed

and what she indicated on the charts she completed, Beaufils re-

sponded that she asked her company for clarification about its pro-

cesses. She stated that she wanted to make it seem urgent because

they were taking a while to respond, so she asked things like “are

you putting my name on charts where these patients are not

even—are they fictitious patients and things of that nature?” She

said that was when she had an opportunity to speak with Frame.

She then testified that she continued writing orders after communi-

cating with Cigna. She testified that Frame told her that the final

paperwork was supposed to have everyone’s provider information

on it.

The government then pressed Beaufils about how she was

compensated, noting that in her first informal interview with

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Agent Dye she said she only got paid per patient chart reviewed if

the patient was prescribed a DME.

Beaufils further testified that, if she needed any clarifications,

she would return the chart but would not call the patient directly.

The government then reminded her of her earlier statement to the

FBI where she indicated that she had called patients and asked them

to perform diagnostic knee assessments. Beaufils attempted to rec-

tify the two statements, claiming that she had the option to call and

verify things with the patients themselves, but did not. She testified

that any explanation she gave to Agent Dye as to how she would

perform certain examinations was from “a review perspective” and

answered how she would hypothetically perform examinations if

she had to perform them over the phone, not whether she had per-

formed them. Beaufils again confirmed that, despite her statement

to Agent Dye, she did not call the patients.

In response to the court’s question regarding what EIP paid

Beaufils to do, she testified that she was getting paid for quality

control, and to make sure the paperwork looked correct. When

asked about the order of an extra-large brace for a patient weighing

less than 100 pounds, she confirmed that was the type of quality

control she was hired to perform. The defense then rested without

redirect.

vi. Frame’s Rebuttal Testimony

The government called Charlene Frame as a rebuttal wit-

ness. Frame testified that, between 2017 and 2019, she owned RPN

and EIP, two related telemedicine companies. She admitted that

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20 Opinion of the Court 22-13292

she had pleaded guilty to a conspiracy charge related to paying pro-

viders, including Beaufils, to authorize orders for orthotic braces.

Frame denied telling Beaufils, either directly or through her other

employees, that the files she was reviewing were first being seen

by other providers. She also denied telling Beaufils that all she had

to do was sign the orders because the examinations had already

been done. Frame stated that the DMERx form did not require the

field of “primary care physician” to be completed and that no other

provider’s signature was required before the order was submitted

to Medicare for payment. She testified that Beaufils’s signature

alone, as a nurse practitioner, was sufficient to submit a bill to Med-

icare for payment. As to the primary physician field in the records,

Frame claimed she had never seen that field filled out.

B. Jury Instructions

Prior to trial, the parties filed a “Joint Request to Charge,”

which included a “deliberate ignorance” jury instruction. The pro-

posed instruction provided:

Deliberate Ignorance as Proof of Knowledge: If a De-

fendant’s knowledge of a fact is an essential part of a

crime, it’s enough that the Defendant was aware of a

high probability that the fact existed—unless the De-

fendant actually believed the fact didn’t exist. “Delib-

erate avoidance of positive knowledge”—which is the

equivalent of knowledge—occurs, for example, if a

defendant possesses a package and believes it contains

a controlled substance but deliberately avoids learn-

ing that it contains the controlled substance so he or

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22-13292 Opinion of the Court 21

she can deny knowledge of the package’s contents.

But I must emphasize that negligence, carelessness,

or foolishness isn’t enough to prove that the Defend-

ant knew about the possession of the controlled sub-

stance.

The court informed counsel that, as to the jury charges, it

had “consolidate[d] the general information about the conspiracy

charges” to avoid redundancy, and that this was “the only signifi-

cant change” it made to the parties’ proposed jury instructions.

During its closing argument, the government stated in per-

tinent part:

Ladies and gentlemen, the last thing I want to talk to

you about is called deliberate ignorance which is what

the Judge is going to charge you about. It’s some-

times called the ostrich defense. It is just sticking your

head in the sand when you should be asking ques-

tions. When she is telling you that she received orders

that were already filled out that talks about these ex-

ams that had been done and her—the pronoun “I” is

all through those documents saying I did this and I did

that and she knew she didn’t do it, she should have

been asking questions and she didn’t, and she is guilty

of all of the counts in the indictment and we ask you

to return a verdict that reflects the truth of this mat-

ter. Thank you.

Despite the parties’ Joint Request, and its statement to the parties,

the jury instructions did not include any language regarding “delib-

erate ignorance.” After issuing the jury charge, neither party

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22 Opinion of the Court 22-13292

objected to the court’s instructions. As part of its jury charges, the

court explained that “it is [the court’s] duty to instruct you on the

rules of law that you must follow and apply in deciding this case,”

that the jury “must follow the law as [the court] explains,” that the

jury must “consider only the evidence . . . admitted in this case,”

and that “nothing the lawyers say is evidence” or binding.

C. Jury Verdict and Sentencing Enhancement for Perjury

The jury acquitted Beaufils of the conspiracy to commit

health care fraud charge (Count 1), but found her guilty of Counts

2 through 17. In anticipation of sentencing, a probation officer pre-

pared a presentence investigation report (“PSI”). In calculating

Beaufils’s offense level, the probation officer applied a two-level en-

hancement for obstruction of justice, under U.S.S.G. § 3C1.1, for

committing perjury at trial.

Beaufils objected to the enhancement, arguing that her tes-

timony was based on her subjective belief regarding the billing pro-

cess and a lack of intent to commit a crime. She tried to discredit

Frame’s testimony by characterizing her as a “convicted felon and

admitted fraudster” who lacked any concrete evidence to support

her otherwise unreliable testimony. The government argued the

enhancement was proper because Beaufils lied on the witness

stand, as evidenced in part by Frame’s clear statement that she paid

Beaufils to order the braces. The government pointed to the total-

ity of the evidence supporting Beaufils’s knowledge and unlawful

acts, including: (1) medical records Beaufils signed attesting that

she examined a patient who was deceased at the time, (2) Beaufils’s

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22-13292 Opinion of the Court 23

email messages revealing that she knew she was prescribing medi-

cal equipment, i.e. the braces, and not just reviewing patient rec-

ords, (3) orders she continued to sign even after discovering that

one of the records submitted contained false statements, and

(4) the discrepancies between her testimony and the statements she

made, as transcribed, in her initial interview with the FBI. All of

this evidence, the government maintained, amply demonstrated

that Beaufils lied on the witness stand. The government also relied

on the jury’s guilty verdict as further support that her testimony

lacked credibility and, therefore, the enhancement was justified.

At the sentencing hearing, the court characterized Beaufils’s

testimony as making “a specific and wholesale denial of the actual

criminal acts, and this was . . . incrementally modified, altered or

withdrawn as the case may be when on cross examination she was

confronted by prior inconsistencies.” The court emphasized that it

could not review her testimony in a vacuum, but had to consider

it as a whole, including the “free ranging cross examination and her

sometimes enthusiastic denials and her attempt to reconcile the

facts seemingly proven by the evidence at trial with prior inconsist-

encies.” The court found that, “[o]n the whole[,] Mrs. Beaufils

simply lied to the jury.” Therefore, it overruled her objection and

applied the two-level enhancement for obstruction of justice. It

then assigned her a total offense level of 26 and a criminal history

category of I, and sentenced her to 87 months of imprisonment

which was the low end of the guideline range.

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24 Opinion of the Court 22-13292

D. Beaufils’s Motion for a New Trial

On September 22, 2022, prior to filing her notice of appeal,

Beaufils, through new counsel, moved for a new trial pursuant to

Federal Rule of Criminal Procedure 33. Beaufils conceded that her

motion for a new trial was untimely, but she argued that she could

establish excusable neglect based on her trial attorney’s failure to

abide by her earlier request to file the motion. She claimed she sent

him a text message on February 8, 2022, asking that the motion be

filed on the ground that there was evidence that had not been pre-

sented at trial. She stated that trial counsel believed that there were

no grounds for a motion for a new trial, and told her that there

would not be any further activity in the case, other than the PSI,

until sentencing, and then Beaufils could appeal. Beaufils con-

tended that, at a minimum, her text message clearly showed that

she always intended to seek a new trial and that she had a claim for

ineffective assistance of counsel for failure to introduce the “evi-

dence not presented.” She asserted that her trial counsel expressly

rejected her request for a new trial without researching the viability

of such a motion and did so without explaining to her the deadlines,

parameters, and need for a new attorney if she wished to raise is-

sues of ineffective assistance of counsel.

Before the government responded and before the court

ruled on her motion, Beaufils filed her notice of appeal on Septem-

ber 28, 2022, after which the government responded in opposition.

On October 6, 2022, the district court denied Beaufils’s motion for

a new trial. The court ruled that Beaufils’s motion was untimely

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22-13292 Opinion of the Court 25

because it was due within 14 days of the jury’s guilty verdict, mak-

ing the actual deadline February 15, 2022. As to Beaufils’s claim of

excusable neglect, the court informed Beaufils that the motion was

not the proper vehicle to litigate an ineffective assistance of counsel

claim. The court also stated that, to the extent trial counsel’s as-

sessment regarding the strength of such a motion was incorrect,

counsel’s misunderstanding of the law does not constitute excusa-

ble neglect, relying on Federal Rule of Criminal Procedure 45(b)

and circuit precedent. The parties then proceeded with this appeal.

II. STANDARDS OF REVIEW

There are multiple standards of review which govern this

appeal. First, we review whether evidence proffered at trial is suf-

ficient to support a conviction de novo. United States v. Fries, 725

F.3d 1286, 1291 (11th Cir. 2013). When the defendant moves for a

judgment of acquittal at the close of the government’s case but fails

to renew the motion after all of the evidence has been entered into

the record, we will reverse the conviction “only where doing so is

necessary to prevent a manifest miscarriage of justice.” Id.; see

United States v. Waters, 937 F.3d 1344, 1356 (11th Cir. 2019). A man-

ifest miscarriage of justice means “either that the record is devoid

of evidence of an essential element of the crime or ‘that the evi-

dence on a key element of the offense is so tenuous that a convic-

tion would be shocking.’” Fries, 725 F.3d at 1291 (quoting United

States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006)). In consid-

ering if there has been a manifest miscarriage of justice, we view

the evidence “in the light most favorable to the government and

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26 Opinion of the Court 22-13292

accept all reasonable inferences and credibility determinations that

support the jury’s verdict.” Milkintas, 470 F.3d at 1343.

We generally review a district court’s jury instructions de

novo, but apply an abuse of discretion standard if a party fails to

object to the instructions. United States v. Starke, 62 F.3d 1374, 1381

(11th Cir. 1995); see also FED. R. CRIM. P. 30(d). To establish plain

error, “there must be (1) an error (2) that is plain and (3) that has

affected the defendant’s substantial rights.” United States v. Madden,

733 F.3d 1314, 1320 (11th Cir. 2013). Yet, even when all three ele-

ments are met, we will not reverse a conviction for plain error un-

less, considering the charge as a whole, it is likely to result in “a

grave miscarriage of justice, or the error seriously affects the fair-

ness, integrity, or public reputation of judicial proceedings.” Starke,

62 F.3d at 1381 (internal quotation marks and citation omitted);

United States v. Utsick, 45 F.4th 1325, 1332 (11th Cir. 2022).

When reviewing a district court’s application of an obstruc-

tion of justice sentencing enhancement, we review the district

court’s factual findings for clear error, but review de novo its appli-

cation of the Sentencing Guidelines to those facts. United States v.

Singer, 963 F.3d 1144, 1164 (11th Cir. 2020); United States v. Singh,

291 F.3d 756, 763 (11th Cir. 2002). In doing so, we give significant

deference to the district court’s credibility assessments. Singh, 291

F.3d at 763.

We review a district court’s denial of a motion for a new trial

based on untimeliness for abuse of discretion. United States v.

Scrushy, 721 F.3d 1288, 1303 (11th Cir. 2013); United States v. Smith,

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22-13292 Opinion of the Court 27

918 F.2d 1501, 1509 (11th Cir. 1990). “A district court abuses its dis-

cretion when it misapplies the law in reaching its decision or bases

its decision on findings of fact that are clearly erroneous.” Scrushy,

721 F.3d at 1303. This standard allows for a “range of choice for the

district court,” as long as that choice is not a “clear error of judg-

ment.” Rasbury v. IRS (In re Rasbury), 24 F.3d 159, 168 (11th Cir.

1994) (citation omitted).

III. DISCUSSION

Our analysis proceeds in four parts. First, we consider

whether the government presented sufficient evidence to support

all sixteen of Beaufils’s convictions. Second, we consider whether

the district court erred in failing to give the jointly requested jury

charge on deliberate ignorance. Third, we consider whether the

district court erred in applying a two-level enhancement for per-

jury under U.S.S.G. § 3C1.1 at sentencing. Finally, we consider

whether the district court abused its discretion in denying Beaufils’s

motion for a new trial on the basis that she had not shown excusa-

ble neglect for its untimeliness.

A. Sufficiency of the Evidence

On appeal, Beaufils argues that the evidence at trial was in-

sufficient to support any of her convictions because the govern-

ment failed to prove the essential elements of “knowledge” and

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28 Opinion of the Court 22-13292

“intent” required under each charged offense. 2 A defendant acts

willfully when she knows her conduct is unlawful, and acts know-

ingly when she is aware of the facts that make up the offense.

United States v. Henderson, 893 F.3d 1338, 1348 (11th Cir. 2018). The

government can prove knowledge or intent through circumstantial

evidence. Id. With this in mind, we evaluate whether the govern-

ment presented enough evidence of intent and knowledge such

that a conviction for each of the charges is not a clear miscarriage

of justice. Fries, 725 F.3d at 1291.

i. Health care fraud

Beaufils was convicted of five counts of health care fraud un-

der 18 U.S.C. § 1347(a). To prove that a defendant violated Section

1347(a), the government must prove the following elements:

(1) that the defendant knowingly and willfully exe-

cuted a scheme or artifice (a) to defraud a health care

benefit program as defined in 18 U.S.C. § 24(b) or

(b) to obtain money or property owned by or under

the custody and control of a health care benefit pro-

gram by means of false or fraudulent pretenses, rep-

resentations, or promises;

2 See 18 U.S.C. § 1347(a) (health care fraud); 18 U.S.C. § 1035(a)(2) (false state-

ments related to health care fraud); 18 U.S.C. § 1028A (aggravated identity

theft); 18 U.S.C. § 371 (conspiracy). These offenses require a showing of either

willful or knowing conduct, or both.

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22-13292 Opinion of the Court 29

(2) that the health care benefit program affected inter-

state commerce;

(3) that the false pretenses, representations, or prom-

ises related to a material fact;

(4) that the defendant acted willfully and with intent

to defraud; and

(5) that the defendant acted in connection with the

delivery of or payment for healthcare benefits, items

or services.

Scott, 61 F.4th at 863–64. Beaufils argues that the government

failed to prove she had knowledge of the fraudulent scheme or that

she intended to defraud Medicare. She contends that, instead, the

evidence showed that she had no knowledge of the fraudulent

scheme and was just completing her work tasks as directed.

The trial record belies her theory of defense. As to

knowledge, the government submitted evidence that Beaufils cer-

tified on four different occasions that she would “not knowingly

present or cause to be presented a false or fraudulent claim for pay-

ment by Medicare and will not submit claims with deliberate igno-

rance.” Beaufils testified that, as a nurse practitioner, she was re-

quired to be under the supervision of a physician. Indeed, she had

signed a collaborative practice agreement that limited the scope of

her authorization to provide health services to the specialty area or

field of her supervising physician and, more specifically, to the

emergency department at Spaling Regional Medical Center in Grif-

fin, Georgia. Beaufils testified that a physician’s name would be

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30 Opinion of the Court 22-13292

provided on the charts she was reviewing, a claim that she later

contradicted.

Her supervising physician Dr. Pirzada testified that none of

the orders that Beaufils wrote for orthotic braces occurred under

his supervision. Further, there was evidence that the platform she

was using, DMERx, informed Beaufils, as well as other people uti-

lizing the same platform, that she was listed as the patient’s pro-

vider. The records from DMERx did not list another provider as

having completed patient examinations, and there was evidence

presented showing that to complete the orders, Beaufils had to

complete the section regarding examinations that purportedly took

place, even though she had not performed these examinations.

Beaufils’s testimony that someone at RPN told her that another

medical doctor was seeing the patients and was required to give the

final attestation was rebutted by the testimony of Frame, who

stated that neither she nor any of her employees told Beaufils that

the patients whose files she reviewed were first cared for by other

providers.

While Beaufils argues on appeal that Frame is not credible,

we must accept all reasonable inferences and credibility determina-

tions the jury made. Milkintas, 470 F.3d at 1343. Moreover, the

jury could have disbelieved Beaufils’s own testimony and consid-

ered her statements as substantive evidence of her guilt. Brown, 53

F.3d at 314. Under our standard of review, we must respect the

jury’s choice as to how much credibility to extend to the witnesses’

testimony, including Beaufils’s.

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22-13292 Opinion of the Court 31

Evidence from the DMERx records also supports the jury’s

conclusion that Beaufils was knowingly and willfully engaging in

fraud. She routinely signed multiple orders in short time clusters,

which matched confirmation emails she sent to RPN. Beaufils also

electronically signed attestations that the information contained in

the patients’ records was accurate and that she personally per-

formed the patient assessments, all of which was untrue. In fact,

she later admitted that she had never performed any examinations

or called the patients, and at least two of the patients prescribed

DMEs had never seen or heard of Beaufils. The orders themselves

contained inconsistent and inaccurate information, like a knee

brace for a woman whose leg had been amputated, a brace to im-

prove the quality of life for a woman in hospice, and an extra-large

brace for a woman who weighed less than 100 pounds. The gov-

ernment also introduced email communications indicating that

Beaufils did in fact read these orders.

Beaufils’s internet search history showed that she had

viewed YouTube videos entitled, “DMERx Knee Pain” and

“DMERx Free Cash,” even though her nurse practitioner creden-

tialing application explicitly warned her about referring patients to

DME companies. Finally, as to the health care fraud convictions,

Beaufils contradicted the earlier statements she gave to the FBI and

it was, therefore, reasonable for the jury to infer that she knew she

was engaging in fraud. Milkintas, 470 F.3d at 1343. Viewing the

evidence in the light most favorable to the jury verdict, the govern-

ment presented enough evidence of intent and knowledge such

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32 Opinion of the Court 22-13292

that Beaufils’s convictions under 18 U.S.C. § 1347(a) are not a clear

miscarriage of justice. See id.; Fries, 725 F.3d at 1291.

Accordingly, we affirm Beaufils’s convictions on these five

counts.

ii. False statements related to health care fraud

Beaufils also was convicted of five counts of making false

statements related to healthcare matters under 18 U.S.C.

§ 1035(a)(2). In order to convict Beaufils under Section 1035, the

government had to establish that she “knowingly and willfully”

made “any materially false, fictious, or fraudulent statements or

representations,” or made or used “any materially false writing or

document knowing the same to contain any materially false, ficti-

tious, or fraudulent statement or entry, in connection with the de-

livery or payment for healthcare benefits, items, or services . . . .”

18 U.S.C. § 1035(a)(2). Beaufils contends the government failed to

present sufficient evidence that she “knowingly and willfully”

made any false statements because she was not aware that the pa-

tient records were falsified.

However, the evidence described above regarding the

health care fraud counts, including the numerous inconsistencies

in her orders for braces and overall knowledge regarding the

scheme, also speaks to her intent and willingness to violate Section

1035(a)(2). Even if Beaufils was not aware that the medical infor-

mation was falsified, evidence showed false attestations in connec-

tion with the payment for healthcare items. 18 U.S.C. § 1035(a)(2).

Specifically, the medical records include Beaufils’s attestations to

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22-13292 Opinion of the Court 33

conversations with patients, examinations of patients, and verifica-

tion of the necessity of treatments according to the accepted stand-

ards of medical practice. According to Beaufils’s own testimony,

however, she did not call or examine any of these patients, mean-

ing these attestations were untrue. Beaufils knew that orthotic

braces were outside of her authorized scope of nursing practice,

which was emergency medicine and, therefore, these orders in and

of themselves were evidence that she knowingly made false repre-

sentations to Medicare. See 18 U.S.C. § 1035(a)(2). Again, viewing

the evidence in the light most favorable to the jury verdict, the rec-

ord does not demonstrate a clear miscarriage of justice. See

Milkintas, 470 F.3d at 1343. Accordingly, we affirm these convic-

tions as well.

iii. Aggravated identity theft

Next, Beaufils challenges her conviction on five counts of

aggravated identity theft under 18 U.S.C. § 1028A. To prove ag-

gravated identity theft under Section 1028A, the government must

establish that “during and in relation” to an enumerated predicate

felony—here, Beaufils’s false statements related to health care

fraud—she “knowingly transfer[ed], possesse[d], or [used], without

lawful authority, a means of identification of another person . . . .”

18 U.S.C. § 1028A. Beaufils concedes that her convictions for ag-

gravated identity theft are wholly dependent on whether the jury

found her guilty of making false statements related to health care

fraud under 18 U.S.C. § 1035(a)(2) (Counts 8 through 12). Thus,

because the government presented sufficient evidence for the

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34 Opinion of the Court 22-13292

underlying felonies, we also affirm her convictions for aggravated

identity theft. See United States v. Barrington, 648 F.3d 1178, 1193

(11th Cir. 2011); 18 U.S.C. § 1028A.

iv. Conspiracy

Finally, Beaufils was convicted of one count of conspiracy

under 18 U.S.C. § 371 for the purpose of receiving kickbacks and

making false statements about her treatment of patients who re-

ceived the DMEs. To prove conspiracy under Section 371, the gov-

ernment had to establish “(1) that a conspiracy existed; (2) that the

defendant knew of it; and (3) that the defendant, with knowledge,

voluntarily joined it.” United States v. Sosa, 777 F.3d 1279, 1290

(11th Cir. 2015) (citation omitted). While direct evidence of

knowledge regarding the conspiracy is ideal, circumstantial evi-

dence will suffice. United States v. Duldulao, 87 F.4th 1239, 1262

(11th Cir. 2023). Such circumstantial evidence can be based on in-

ferences from the participants’ conduct, or a co-conspirator’s testi-

mony. See United States v. Azmat, 805 F.3d 1018, 1035 (11th Cir.

2015); United States v. Nerey, 877 F.3d 956,969 (11th Cir. 2017) (“Tes-

timony of a co-conspirator, even if uncorroborated, [can be] suffi-

cient to support a conviction.” (quoting United States v. Broadwell,

870 F.2d 594, 601 (11th Cir. 1989))).

The trial evidence supports the jury conviction on the con-

spiracy count. First, there was evidence that she ordered orthotic

braces for patients whom she had never spoken with or met.

Frame admitted the DME referral scheme was a fraudulent enter-

prise and that she paid Beaufils to authorize orders for orthotic

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22-13292 Opinion of the Court 35

braces. Beaufils also admitted to receiving payments per chart that

she reviewed. When RPN or EIP would prompt her to submit new

charts or complete those already submitted, she would do so right

away without any further evaluation of the form, the patient’s

chart, or outreach to the patient. Beaufils’s contract with WellStar

clearly defined such behavior, i.e., making patient referrals and get-

ting illegally compensated for doing so, as violating the Anti-Kick-

back Statute, 42 U.S.C. § 1320a-7b(b)(1).

Furthermore, she knew that she could not be listed as the

sole provider on a patient’s Medicare claim. Yet, she continued to

review patient charts and submit them under only her name even

after a Cigna representative notified her that doing so was im-

proper. Viewing the evidence in the light most favorable to the

jury verdict, there was not a clear miscarriage of justice. The gov-

ernment presented enough evidence to show that Beaufils know-

ingly and willfully conspired with RPN and EIP to make false med-

ical statements and to receive kickbacks related to doing so.

Milkintas, 470 F.3d at 1343.

B. Jury Instructions

Next, Beaufils argues that the district court plainly erred and

affected her substantial rights when it did not inform the parties

how it would rule on the proposed jury charge on deliberate igno-

rance and subsequently failed to give the instruction when it

charged the jury.

Under Federal Rule of Criminal Procedure 30(b), the trial

court “must inform the parties before closing arguments how it

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36 Opinion of the Court 22-13292

intends to rule on the requested [jury] instructions.” FED. R. CRIM.

P. 30(b) (emphasis added). In general, we “ha[ve] only required

substantial compliance with [Federal Rule of Criminal Procedure]

Rule 30[,] and a defendant must show prejudice before his convic-

tion will be reversed.” United States v. Lopez, 590 F.3d 1238, 1252–

53 (11th Cir. 2009) (quoting United States v. Clark, 732 F.2d 1536,

1541 (11th Cir. 1984)). For an error to be prejudicial, “[i]t must

have affected the outcome of the district court proceedings.”

United States v. Olano, 507 U.S. 725, 734 (1993). Prejudice arises

from a Rule 30 violation “when the change in the instructions is

substantial, when the instructions repudiate counsel’s arguments,

or when the instructions impair the effectiveness of those argu-

ments.” Lopez, 590 F.3d at 1253 (quoting United States v. Descent,

292 F.3d 703, 707 (11th Cir. 2002)). An error is generally not preju-

dicial to a defendant when the district court’s erroneous instruction

was “made at the government’s expense and made acquittals more

likely.” United States v. Beasley, 72 F.3d 1518, 1529 n.9 (11th Cir.

1996).

Both parties requested a jury instruction about deliberate ig-

norance and, thus, the district court committed plain error when it

failed to inform the parties of its intended ruling on that requested

charge, especially when it then did not give the jury that charge.

See United States v. Bankston, 945 F.3d 1316, 1318 (11th Cir. 2019)

(explaining “[a]n error is obvious,” or plain, “when it flies in the

face of either binding precedent or ‘the explicit language of a stat-

ute or rule’” (quoting United States v. Chau, 426 F.3d 1318, 1322

(11th Cir. 2005))). However, we only require substantial

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22-13292 Opinion of the Court 37

compliance with Rule 30, and Beaufils still must show she was prej-

udiced by this error for this Court to reverse her conviction.3 Lopez,

590 F.3d at 1252–53; Clark, 732 F.2d at 1541. Here, Beaufils con-

tends that due to the lack of any instruction on deliberate igno-

rance, the jury relied on the statement of law the government

made during its closing arguments which, she maintains, was in-

correct. She argues this statement failed to establish that the gov-

ernment must prove deliberate ignorance beyond a reasonable

doubt and improperly shifted the burden to Beaufils to actively dis-

cover the illegality of her actions. She contends that, without the

proper instruction, the jury likely convicted her based on an incor-

rect “negligence standard.” Beaufils’s arguments are unconvinc-

ing.

To start, the district court sufficiently instructed the jury on

how to treat the remarks the government made during its closing

3 Although we have not affirmatively applied the “substantial compliance”

rule in the context of Rule 30(b) where both parties requested an instruction

but the court did not give the instruction and did not give the parties notice

that it was not going to do so, we generally have required “substantial compli-

ance” in the vast spectrum of Rule 30(b) scenarios. See Lopez, 590 F.3d at 1253

(only requiring substantial compliance with Rule 30(b) in reviewing a district

court’s supplemental jury instructions); Descent, 292 F.3d at 707 (only requiring

substantial compliance with Rule 30(b) in reviewing a district court’s altera-

tion of the jury instructions to match the amount eligible for forfeiture); United

States v. Clark, 732 F.2d 1536, 1541 (11th. Cir. 1984) (only requiring substantial

compliance with Rule 30(b) in reviewing a district court’s linguistic conflation

of two drug names). Nothing about Beaufils’s case warrants departure from

accepting substantial compliance with Rule 30(b).

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38 Opinion of the Court 22-13292

statement, thus alleviating any potential prejudice arising out of

those remarks. Specifically, it began charging the jury by establish-

ing “it is [the court’s] duty to instruct you on the rules of law that

you must follow and apply in deciding this case,” and that the jury

“must follow the law as [the court] explains.” Further, it instructed

the jury to “consider only the evidence . . . admitted in this case,”

and it reminded them that “nothing the lawyers say is evidence in

this case” and that “[w]hat the lawyers say is not binding on you.”

These instructions addressed any potential concern that the jury

relied on the government’s statement regarding deliberate igno-

rance as the law governing the case.

Moreover, the instructions emphasized that Beaufils’s con-

victions had to be based on a finding of actual knowledge. See

United States v. Stone, 9 F.3d 934, 937–42 (11th Cir. 1993); see also

United States v. Phelps, 733 F.2d 1464, 1473 (11th Cir. 1984) (“The

law presumes that the jury will follow the court’s instructions, . . .

and nothing of record supports the assertion that the jury was con-

fused or unable to follow the limiting instruction of the court.”);

Shriner v. Wainwright, 715 F.2d 1452, 1459 (11th Cir. 1983) (“[W]ith

a properly instructed jury, there is nothing to show the jury relied

on the prosecutor’s remarks.”). Deliberate ignorance is simply one

way the knowledge element of a criminal violation can be

proven—another being actual knowledge. See United States v. Pra-

ther, 205 F.3d 1265, 1270 (11th Cir. 2000). Deliberate ignorance re-

fers to when a defendant intentionally avoids discovering the truth,

and it is an insufficient basis to claim the defendant lacked a “know-

ing” element of a crime. United States v. Stone, 9 F.3d 934, 936-37

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22-13292 Opinion of the Court 39

(11th Cir. 1993). Therefore, the absence of the instruction arguably

actually harmed the government by eliminating another potential

avenue for proving there was no way Beaufils could not have

known the nature and extent of the fraudulent scheme which

served as the basis for her conviction. Thus, the jury instruction

did not prejudice Beaufils. Beasley, 72 F.3d at 1529 n.9.

Finally, although the government’s remarks on deliberate ig-

norance were far from comprehensive, they did not misstate the

law or improperly shift the government’s burden onto Beaufils; so,

she was not prejudiced. The government referred to deliberate ig-

norance as the “ostrich defense,” a common phrase courts across

the country use, 4 and briefly recounted evidence that undermined

Beaufils’s arguments that she lacked knowledge regarding the

overall fraudulent scheme. Again, the district court’s jury instruc-

tions sufficiently explained the particular elements of the charged

crimes and reiterated the government’s burden of proof. When

describing wire fraud, the court stated that the government must

prove “beyond a reasonable doubt” that “the defendant knowingly

devised or participated in a scheme to defraud someone by using

false or fraudulent pretenses, representations or promises.” As to

health care fraud, the court explained that the prosecution must

prove “beyond a reasonable doubt” that “the defendant knowingly

executed or attempted [] to execute a scheme or artifice to

4 See, e.g., United States v. Rivera, 944 F.2d 1563, 1570 (11th Cir. 1991); Bos. &

Maine Corp. v. Massachusetts Bay Transp. Auth., 587 F.3d 89, 101 (1st Cir. 2009);

United States v. Williams, 202 F.3d 959, 962–63 (7th Cir. 2000).

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40 Opinion of the Court 22-13292

defraud . . . .” The court also stated that “[w]hat must be proven

beyond a reasonable doubt is that the defendant knowingly at-

tempted or carried out a scheme substantially similar to the one

alleged in the indictment.” In sum, reviewing the record as a

whole, the district court’s failure to inform the parties of its in-

tended ruling followed by not giving the requested jury instruc-

tion, while plain error, did not affect Beaufils’s substantial rights.

C. Two-Level Sentencing Enhancement for Obstruction

Beaufils argues the district court clearly erred by imposing a

two-level enhancement under § 3C1.1 for obstruction of justice.

The Sentencing Guidelines provide for a two-level enhancement if

a defendant “willfully obstructed or impeded, or attempted to ob-

struct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of

conviction.” U.S.S.G. § 3C1.1.

A defendant may obstruct or impede justice by committing

perjury. Id. cmt. n.4(b). For a district court to find a defendant

perjured herself, the testimony must be: (1) made under oath or

affirmation; (2) false; (3) material; and (4) “given with the willful in-

tent to provide false testimony and not as a result of a mistake, con-

fusion, or faulty memory.” Singh, 291 F.3d at 763 n.4; see United

States v. Dunnigan, 507 U.S. 87, 94 (1993). Testimony is “material”

under Section 3C1.1 where, if considered truthful, it would be

prone to influence or affect the issue to be decided. U.S.S.G.

§ 3C1.1, cmt. n.6. Ordinarily, making a false statement to law en-

forcement officers without being under oath does not constitute

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22-13292 Opinion of the Court 41

perjury under Section 3C1.1 unless that materially false statement

“significantly obstructed or impeded the official investigation or

prosecution of the instant offense.” U.S.S.G. § 3C1.1 cmt. nn.5(B)

& 4(G).

Typically, if a district court applies this enhancement based

on perjury, it should “make specific findings as to each alleged in-

stance of obstruction by identifying the materially false statements

individually.” Singh, 291 F.3d at 763 (citing United States v. Arguedas,

86 F.3d 1054, 1059 (11th Cir. 1996)). However, a district court may

make a general finding that the enhancement is warranted if its de-

termination includes “all of the factual predicates necessary for a

perjury finding.” Id. (quoting United States v. Lewis, 115 F.3d 1531,

1538 (11th Cir. 1997)).

The district court found Beaufils perjured herself when “she

made a specific and wholesale denial of the actual criminal acts, and

this was . . . incrementally modified, altered or withdrawn as the

case may be when on cross examination she was confronted by

prior inconsistencies.” The court noted “her sometimes enthusias-

tic denials and her attempt to reconcile the facts seemingly proven

by the evidence at trial with prior inconsistencies.”

Nevertheless, Beaufils maintains the only other “proof” of

perjury pertained to her voluntary interview with Agent Dye early

in the investigation, during which she was not under oath and dur-

ing which she never signed an affidavit swearing to the truthfulness

of her statements. Further, she contends that her testimony at trial

did not conflict with what she told Agent Dye, and that any

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42 Opinion of the Court 22-13292

inconsistency between her trial testimony and her FBI interview

simply does not rise to the level of perjury. However, Beaufils’s

testimony stating that she thought the charts that she was review-

ing were being prepared by, and then reviewed by, other physi-

cians was rebutted by Frame’s testimony that (1) neither Frame nor

any of her employees told Beaufils that the files she was reviewing

were first being completed by other providers, and (2) the patient

forms provided to Beaufils were incomplete and only contained

her signature, not that of any other medical professional. Further-

more, she told Agent Dye that she had called patients and had per-

formed examinations, but then testified at trial that she did neither

of these things.

Generally, “[w]e do not second-guess the district court’s

credibility determination,” especially when bolstered by the jury’s

verdict. Singer, 963 F.3d at 1166. Here, the district court stated

that, although its credibility findings were not solely based on the

jury’s verdict, the verdict did support an inference that the jury

agreed as to the credibility determination. This analysis comports

with our precedent, which has upheld an obstruction-of-justice en-

hancement where the court, independent from but in agreement

with the jury’s verdict, found a convicted defendant’s material tes-

timony to lack credibility. See Singer, 963 F.3d at 1165–66. Because

the district court did not clearly err in its analysis of the facts under-

lying its perjury determination, we affirm the district court’s appli-

cation of the two-level sentencing enhancement for obstruction of

justice.

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22-13292 Opinion of the Court 43

D. Motion for New Trial

Finally, Beaufils argues that the district court should have

accepted her untimely motion for a new trial because she estab-

lished excusable neglect. She states that her trial attorney rejected

her original request to file the motion and failed to instruct her on

how to pursue such relief, and that her new appellate counsel,

whom she hired after the filing deadline, eventually honored her

request.

A defendant must file a motion for a new trial, on grounds

other than newly discovered evidence, within 14 days after a ver-

dict is returned. FED. R. CRIM. P. 33(b)(2). However, a district

court may extend this deadline after it has already expired “if the

party failed to act because of excusable neglect.” FED. R. CRIM. P.

45(b)(1)(B).

Although we have not definitively interpreted the phrase

“excusable neglect” in the context of Federal Rule of Criminal Pro-

cedure 45, we have used consistent interpretations of the phrase in

the context of other federal rules. For example, the Court adopted

the same interpretation of “excusable neglect” in the context of

both Federal Rule of Civil Procedure 60(b) and Federal Rule of Ap-

pellate Procedure 4(a)(5). See Cheney v. Anchor Glass Container Corp.,

71 F.3d 848, 850 (11th Cir. 1996) (adopting the interpretation for

Federal Rule of Civil Procedure 60(b)); see also Advanced Estimating

Sys., Inc. v. Riney, 77 F.3d 1322, 1324 (11th Cir. 1996) (adopting the

interpretation for Federal Rule of Appellate Procedure 4(a)(5)). In

the cases adopting that interpretation, we held that a court

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44 Opinion of the Court 22-13292

analyzing a claim of excusable neglect must make an equitable de-

cision when considering whether or not to excuse a party’s negli-

gence in failing to meet a deadline, taking into account all relevant

circumstances as to what led to that party’s failure. See Cheney, 71

F.3d at 850; Riney, 77 F.3d at 1325. We listed the following as per-

tinent factors to guide a court’s analysis: “the danger of prejudice

to the nonmovant, the length of the delay and its potential impact

on judicial proceedings, the reason for the delay, including whether

it was within the reasonable control of the movant, and whether

the movant acted in good faith.” Riney, 77 F.3d at 1325 (alteration

accepted) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

P’ship, 507 U.S. 380, 395 (1993)); see Cheney, 71 F.3d at 850 (quoting

Pioneer Inv. Servs. Co., 507 U.S. at 395). 5

In Riney, we held that there was no reason why the meaning

and analysis of “excusable neglect” would be different in Bank-

ruptcy Rule 9006(b)(1), Federal Rule of Civil Procedure 60(b), and

Federal Rule of Appellate Procedure 4(a)(5), and we applied a con-

sistent analysis across all three rules. 77 F.3d at 1324. Similarly, we

see no reason why our prior excusable neglect framework should

not also be applied to Federal Rule of Criminal Procedure

45(b)(1)(B), and we apply it here.

5 Our two cases mentioned here, Cheney and Riney, viewed the Supreme

Court’s decision in Pioneer Investment Services Co. v. Brunswick Associates Limited

Partnership, a case interpreting “excusable neglect” in Bankruptcy Rule

9006(b)(1), as instructive.

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22-13292 Opinion of the Court 45

When considering the third Pioneer factor, whether the rea-

son for the delay was within the movant’s reasonable control, we

have specifically held that “[c]ounsel’s misunderstanding of the

law” does not qualify as “reason for delay” amounting to excusable

neglect under Rule 45. United States v. Snipes, 611 F.3d 855, 865

(11th Cir. 2010) (quoting Corwin v. Walt Disney Co., 475 F.3d 1239,

1255 (11th Cir. 2007)). Although typically we have applied this rule

in cases where counsel misunderstood the filing deadlines and re-

quirements, we have held that an attorney’s failure to understand

or review clear law cannot, as a categorical matter, constitute ex-

cusable neglect to relieve a party from the consequences of failing

to comply with a statutory deadline. United States v. Davenport, 668

F.3d 1316, 1324 (11th Cir. 2012).

Here, under Pioneer’s definition of “neglect,” Beaufils’s trial

counsel’s failure to move for a new trial was neither a simple nor

careless omission, but rather an active decision based on their view

that there were no legitimate grounds to do so. See Pioneer, 507

U.S. at 388. For this reason alone, the district court did not abuse

its discretion in holding that trial counsel’s intentional decision did

not constitute excusable neglect.

Even if the record did not belie Beaufils’s contention that her

attorney’s purported misunderstanding of the law caused the un-

timely filing of her motion, Beaufils’s argument loses because an

attorney’s mistake of law generally cannot constitute excusable ne-

glect. Davenport, 668 F.3d at 1324. As the district court did not

misapply the law or make findings of fact that were clearly

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46 Opinion of the Court 22-13292

erroneous, it did not abuse its discretion in dismissing Beaufils’s

motion as untimely. Therefore, we affirm Beaufils’s convictions

on this ground. Scrushy, 721 F.3d at 1303.

IV. CONCLUSION

For the foregoing reasons, we affirm Beaufils’s convictions

and sentence.

AFFIRMED.