United States v. Lawrence Alexander

USCA11 Case: 23-11322 Document: 102-1 Date Filed: 03/24/2026 Page: 1 of 28

FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11322

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAWRENCE ALEXANDER,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:21-cr-60253-KMM-2

____________________

____________________

No. 23-12282

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

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2 Opinion of the Court 23-11322

LAWRENCE ALEXANDER,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:21-cr-60253-KMM-2

____________________

Before MARCUS and WILSON, Circuit Judges, and JONES,* District

Judge.

WILSON, Circuit Judge:

Defendant-Appellant Lawrence Alexander is an orthopedic

surgeon who was charged with one count of conspiracy to defraud

the United States and to pay health care kickbacks, in violation of

18 U.S.C. § 371; and one count of making a false statement relating

to health care matters, in violation of 18 U.S.C. § 1035. A jury ac-

quitted Alexander on the conspiracy count but convicted him on

the false statement count. He was sentenced to thirty-three months

of imprisonment followed by three years of supervised release, and

he was ordered to pay $315,704.52 in restitution and to forfeit

$125,000.

Alexander raises seven issues on appeal: (1) whether venue

was improper; (2) whether the district court erred in denying Alex-

ander’s motion to dismiss the indictment under § 1035 for failure

* Honorable Steve C. Jones, United States District Judge for the Northern Dis-

trict of Georgia, sitting by designation.

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23-11322 Opinion of the Court 3

to state an offense; (3) whether the evidence was sufficient to con-

vict Alexander under § 1035; (4) whether the evidence was suffi-

cient to support a theory of aiding and abetting; (5) whether the

district court improperly instructed the jury regarding materiality

and deliberate ignorance; (6) whether the district court erred in or-

dering forfeiture; and (7) whether the district court erred in order-

ing restitution.

We affirm the district court on all issues apart from restitu-

tion. On the issue of restitution, we vacate the district court’s order

and remand for further proceedings consistent with this opinion.

I. Background

a. Factual History

In 2016, Alexander and co-defendant Jeremy Waxman cre-

ated a durable medical equipment (DME) company named Silent

Hill Bracing and Orthopedic Supplies, LLC (Silent Hill). Waxman

was a successful medical supply businessman who owned other

DME companies. Waxman approached Alexander, along with a

few others, to propose a new DME partnership. Waxman hoped to

reduce Medicare scrutiny surrounding the volume of his own DME

business. Partnering with Alexander allowed for further distribu-

tion of DME products through an entity formally owned by some-

one other than himself. Like Waxman’s other DME companies, Si-

lent Hill purchased doctor’s orders for orthopedic braces and then

billed Medicare for them.

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4 Opinion of the Court 23-11322

Waxman and Alexander agreed that Alexander would con-

tribute a substantial financial investment and Waxman would han-

dle the day-to-day operations. Because the listed owner had to pro-

vide a personal financial guarantee for the business, Alexander sug-

gested listing the company under his mother, Susan Alexander. Ac-

cording to Waxman, Alexander reasoned that “her credit’s already

bad anyway.” Alexander had other companies under her name, and

Silent Hill was the town where she was born. Susan Alexander was

the only person identified on Silent Hill’s application with Medicare

as a DME provider, even though she had no role in the business and

was not an owner. Alexander supplied Waxman with the necessary

identifying information for his mother, and Waxman would sign

Alexander and his mother’s name with Alexander’s permission.

Alexander and Waxman submitted a CMS 855S form, titled

“Medicare Enrollment Application,” on January 14, 2019. This

form is the basis of the § 1035 false statement count. DME compa-

nies like Silent Hill are required to submit 855S forms to Medicare

when first enrolling, when recertifying their enrollment every five

years, and when making any changes to their Medicare enrollment

status. The January 2019 form in question was submitted to notify

Medicare that Silent Hill had changed their hours of operations.1

The form falsely listed Susan Alexander as the business owner and

contained a certification of its truth.

1 In 2016, Silent Hill filed an original enrollment CMS 855S form, but that en-

rollment application is not included in the instant offense.

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Silent Hill ceased operations in April 2019 after Medicare

suspected fraud.

b. Procedural History

In 2021, in a multi-count, multi-defendant indictment, a

grand jury indicted Alexander with one count of conspiracy to de-

fraud the United States and pay healthcare kickbacks in violation of

18 U.S.C. § 371 (Count 6), and one count of making a false state-

ment relating to health care matters in violation of 18 U.S.C. § 1035

(Count 19). The indictment also charged co-defendants Waxman,

Dean Zusmer, Ronald Davidovic, and Umut Vardar. Only Alexan-

der and Zusmer proceeded to trial.

Before trial, Alexander moved to dismiss the false statement

count, arguing that the CMS 855S did not fall within the billing-for-

services scope of § 1035. The district court denied the motion, con-

cluding that the form qualified under § 1035 as an enrollment ap-

plication that initiates enrollment and permits the provider to bill

Medicare.

At trial, the government argued that Alexander aided and

abetted the submission of an application for Medicare enroll-

ment—the January 2019 form—from which he willfully omitted

ownership and management disclosures required by Medicare for

enrollment and payment authorization purposes. Alexander

moved for a judgment of acquittal three times: at the close of the

government’s case, at the close of evidence, and in a post-trial mo-

tion. The district court denied all three motions.

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The jury found Alexander guilty on the false statement

count but acquitted him on the conspiracy count. The court sen-

tenced him to thirty-three months of imprisonment to be followed

by three years of supervised release. The court ordered Alexander

to pay $315,704.52 in restitution and to forfeit $125,000. Alexander

timely appealed.

II. Venue

Turning to Alexander’s arguments, he first challenges

whether the Southern District of Florida was the proper venue. We

review de novo the district court’s venue determination. United

States v. Muench, 153 F.3d 1298, 1300 (11th Cir. 1998). We must de-

termine “whether, viewing the evidence in the light most favorable

to the government and making all reasonable inferences and cred-

ibility choices in favor of the jury verdict[,] the [g]overnment

proved by a preponderance of the evidence that the offense took

place within the trial district.” United States v. Burroughs, 830 F.2d

1574, 1580 (11th Cir. 1987) (citation modified). The government’s

burden is satisfied when “circumstantial evidence as a whole rea-

sonably supports the inference that the crime was committed in the

trial district.” United States v. Bradley, 644 F.3d 1213, 1253 (11th Cir.

2011) (citation modified).

Alexander argues venue was improper because the govern-

ment offered no evidence as to who filled in the form, who signed

it, who submitted it, who, if anyone, authorized its submission or

where the form was sent from. We disagree. There is overwhelm-

ing circumstantial evidence reasonably supporting the inference

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that the crime took place in the Southern District of Florida. Silent

Hill is located in the Southern District of Florida, Alexander and

Waxman both lived there at the time, and Waxman’s office was

there. Evidence also suggests Waxman submitted the CMS 855S

form from his office. He testified “[m]y office was filing the appli-

cations,” and the charged 855S form was “[s]ubmitted by my busi-

ness on behalf of Silent Hill.”

The government has shown by a preponderance of evidence

that the offense took place in the Southern District of Florida.

Thus, we affirm the district court’s determination that venue was

proper.

III. Motion to Dismiss the Indictment

Next, Alexander challenges whether the district court erred

in denying his motion to dismiss Count 19 of the indictment. We

“review de novo whether an indictment sufficiently alleges an of-

fense” and “review for abuse of discretion a denial of a motion to

dismiss an indictment.” United States v. Gbenedio, 95 F.4th 1319,

1327 (11th Cir. 2024).

Alexander argues that the indictment must be dismissed be-

cause it fails to state an offense under § 1035(a)(2). Section

1035(a)(2) criminalizes false statements made in connection with

Medicare billing and services submissions. In Alexander’s view, the

January 2019 form was merely a notice of a change of hours at Si-

lent Hill, and not, as the government argues, a form that could in-

fluence Medicare billing or services submissions. Alexander argues

that there is no indication that non-billing matters fall within the

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8 Opinion of the Court 23-11322

scope of § 1035. In response, the government argues that the indict-

ment properly alleged that Alexander and Waxman violated

§ 1035(a)(2) by submitting a CMS 855S form to Medicare that con-

tained “a materially false, fict[it]ious, and fraudulent statement and

entry, in connection with the delivery [of] and payment for health

care items and services,” by listing Susan Alexander as the sole

owner and managing employee of Silent Hill.

An indictment “presents the essential elements of the

charged offense,” “notifies the accused of the charges to be de-

fended against,” and “enables the accused to rely upon a judgment

under the indictment as a bar against double jeopardy for any sub-

sequent prosecution for the same offense.” United States v. Jordan,

582 F.3d 1239, 1245 (11th Cir. 2009) (per curiam) (citation modi-

fied). “An indictment that tracks the language of the relevant stat-

ute is sufficient, as long as it also provides a statement of facts and

circumstances that give notice of the offense to the accused.” Id. at

1246 (quotation marks omitted). But an indictment need not “al-

lege in detail the factual proof that will be relied upon to support

the charges.” United States v. Sharpe, 438 F.3d 1257, 1263 n.3 (11th

Cir. 2006) (citation modified).

Alexander’s indictment is legally sufficient. Count 19 of the

indictment directly tracks the language of § 1035(a)(2). The count

specifically identified the false statement as his “signing and submit-

ting to Medicare a CMS Form 855S certifying that [Susan Alexan-

der] was the sole owner and managing employee of Silent Hill,

when . . . [Susan Alexander] was not the sole owner and managing

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employee of Silent Hill.” The indictment also included factual alle-

gations that:

(i) a provider is required to submit a Medicare enroll-

ment application CMS Form 855S to participate in

Medicare; (ii) a provider enrollment form requires ap-

plicants to disclose individuals or organizations with

ownership or partnership interests in a DME supplier;

(iii) upon approving an enrollment application, Med-

icare assigns a provider a “provider number” that en-

ables the provider to submit claims to Medicare for

reimbursement.

In total, the indictment described the offense with statutory

language and included the facts and circumstances of the charged

offense. Thus, the indictment is facially sufficient. We therefore af-

firm the district court’s denial of Alexander’s motion to dismiss.

IV. Sufficiency of the Evidence

Next, Alexander challenges the district court’s denial of his

motion for a judgment of acquittal. This court “review[s] de novo

a district court’s denial of judgment of acquittal on sufficiency of

evidence grounds, considering the evidence in the light most favor-

able to the government, and drawing all reasonable inferences and

credibility choices in the government’s favor.” United States v. Mor-

ley, 99 F.4th 1328, 1336 (11th Cir. 2024) (citation modified). “A

jury’s verdict cannot be overturned for insufficient evidence unless

there is no reasonable construction of the evidence that could sup-

port a guilty verdict.” United States v. Smith, 22 F.4th 1236, 1242

(11th Cir. 2022). The factfinder “is free to choose among alternative

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10 Opinion of the Court 23-11322

reasonable interpretations of the evidence, and the government’s

proof need not exclude every reasonable hypothesis of innocence.”

United States v. Tampas, 493 F.3d 1291, 1298 (11th Cir. 2007) (cita-

tion modified).

He argues that the evidence was insufficient for a conviction

under § 1035 because the government failed to show that the state-

ment was material to Medicare and failed to support a theory of

aiding and abetting the form submission. We address each argu-

ment in turn.

a. Materiality

Alexander argues that the alleged false statement of his

mother’s ownership stake cannot support a conviction under

§ 1035. He asserts that his mother’s ownership stake was not mate-

rial to Medicare because the form was not being used as an appli-

cation for enrollment. The false ownership information could not

have affected the decision to approve or deny enrollment but only

whether to approve or deny the new hours. The government ar-

gues in response that they need not prove that the decisionmaker—

here, Medicare—actually relied on the false statement, just that the

statement had the capability of influencing them. And accurate dis-

closure of ownership interests is important to Medicare in deciding

whether to establish or maintain a billing relationship with a DME

company like Silent Hill.

A false statement is material if it “has a natural tendency to

influence, or [is] capable of influencing, the decision of the deci-

sionmaking body to which it was addressed.” Kungys v. United

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States, 485 U.S. 759, 770, (1988) (quotation marks omitted); United

States v. Henderson, 893 F.3d 1338, 1346 (11th Cir. 2018). A state-

ment is material based on the determination of two questions:

“what statement was made?” and “what decision was the agency

trying to make?” United States v. Gaudin, 515 U.S. 506, 512 (1995).

The government need not “show that the decisionmaker actually

relied on the false statement.” Henderson, 893 F.3d at 1346 (citing

United States v. Clay, 832 F.3d 1259, 1309 (11th Cir. 2016) (“[T]he

test is not whether the agents were actually misled.”)). A false state-

ment can be material even “if the decision maker actually knew or

should have known that the statement was false.” Id. (quotation

marks omitted).

Section 1035 applies to false statements relating to health

care matters:

(a) Whoever, in any matter involving a health care

benefit program, knowingly and willfully–

...

(2) makes any materially false, fictitious, or fraudu-

lent statements or representations, or makes or uses

any materially false writing or document knowing the

same to contain any materially false, fictitious, or

fraudulent statement or entry,

in connection with the delivery of or payment for

health care benefits, items, or services, shall be fined

under this title or imprisoned not more than 5 years,

or both.

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The government presented sufficient evidence at trial to

support their position that the false statement was material to Med-

icare. Expert witness Steven Quindoza testified that Medicare en-

rollment was an ongoing conversation beyond the initial enroll-

ment form, and that the text of the CMS 855S form explicitly states

the importance of that ownership information. 2 Quindoza also ex-

plained that submission of false ownership information would lead

to enrollment termination. 3 According to his testimony, this risk of

termination is ongoing with every CMS 855S submission. There-

fore, even though the form was not used for enrollment, the false

ownership information was capable of influencing the deci-

sionmaker. This meets the standard of materiality. Henderson, 893

F.3d at 1347 (finding evidence that the false statement could have

2 The 855S form makes the significance of ownership information explicit, stat-

ing that to “obtain and retain their billing privileges,” DME companies are re-

quired to, among other things, “disclose any person having ownership, finan-

cial or control interest in the supplier.” The form also made clear that “delib-

erately furnishing false information” could expose someone to criminal penal-

ties under § 1035.

3 Quindoza testified that failure to disclose an owner could lead to several con-

sequences: “First, the enrollment status of that provider could be revoked,

which means they could no longer submit claims; secondly, for claims that

were already paid, Medicare can demand payment, repayment of such claims

or demand an over payment of such claims. And then lastly, Medicare can

consider referring that provider to a law enforcement agency for potential in-

vestigation and potential prosecution.”

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misled a medical professional sufficient to support a theory of ma-

teriality). Despite Alexander’s efforts, the jury was convinced by

the government’s argument of materiality.4

Drawing all inferences in the government’s favor, we find

that a reasonable construction of the evidence supports the jury’s

verdict.

b. Aiding and Abetting

Next, Alexander argues that the evidence was insufficient to

convict him under a theory of aiding and abetting. “To prevail un-

der a theory of aiding and abetting, the government must prove:

(1) the substantive offense was committed by someone; (2) the de-

fendant committed an act which contributed to and furthered the

offense; and (3) the defendant intended to aid in its commission.”

United States v. Margarita Garcia, 906 F.3d 1255, 1280 (11th Cir.

2018) (internal quotation marks omitted). “Aiding and abetting

need not be specifically alleged in the indictment; assuming the ev-

idence supports it, the accused can be convicted of aiding and abet-

ting so long as the jury is instructed on it.” United States v. Seabrooks,

839 F.3d 1326, 1333 (11th Cir. 2016) (citation modified). “[The] in-

tent requirement [is] satisfied when a person actively participates

4 Alexander’s argument that the false statement was not material because it

was not required by Medicare also fails. Liability under § 1035 does not depend

on whether a statement was required, but whether the defendant knowingly

and willfully submitted the false statement and that statement was material.

Here, § 1035 liability attaches even though the statement was voluntarily in-

serted in the CMS 855S form.

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14 Opinion of the Court 23-11322

in a criminal venture with full knowledge of the circumstances con-

stituting the charged offense.” Rosemond v. United States, 572 U.S.

65, 77 (2014). “The government can prove knowledge or intent

through circumstantial evidence.” United States v. Beaufils, 160 F.4th

1147, 1163 (11th Cir. 2025).

Alexander argues that the government failed to establish

that he had any knowledge of the criminal objective attributed to

Waxman. When Waxman testified, he did not recall the January

2019 form and only testified about the routine process of submit-

ting forms on behalf of Silent Hill. He did not testify to the nature,

preparation, or submission of either the form or the false state-

ment.

We disagree. The government presented specific evidence

at trial that meets the three-prong Margarita Garcia test. First, the

form was submitted by Silent Hill under the day-to-day supervision

of Waxman. Second, it was Alexander’s idea to use his mother as

the false owner on the original Medicare forms. Alexander ob-

tained and provided his mother’s fingerprints, Social Security num-

ber, personal information, and signature. This evidence shows that

Alexander contributed to and furthered the false statement submis-

sion. Third, Waxman testified that the January 2019 form was sub-

mitted by Silent Hill, and as a matter of course, Alexander would

have seen and consented to each of the CMS 855S forms before

submission. Waxman also testified that he never signed a docu-

ment on Alexander’s mother’s behalf without Alexander’s permis-

sion. Because this form includes her signature, it is reasonable to

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conclude that Alexander consented to its submission in the regular

course of business.

After a nine-day jury trial, the jury determined that Alexan-

der aided and abetted the signing and submission of the January

2019 form. We find that a reasonable construction of the evidence

meets the three-prong test in Margarita Garcia and supports the

jury’s verdict. Thus, we affirm the district court’s denial of the mo-

tion for a judgment of acquittal on both sufficiency of evidence

grounds.

V. Jury Instructions

Next, Alexander challenges whether the district court erred

in overruling his objection to the materiality jury instruction and

the deliberate ignorance jury instruction. We review de novo the

legal correctness of jury instructions, but we review the district

court’s phrasing for abuse of discretion. United States v. Prather, 205

F.3d 1265, 1270 (11th Cir. 2000).

We review jury instructions “to determine whether the in-

structions misstated the law or misled the jury to the prejudice of

the objecting party.” United States v. Gibson, 708 F.3d 1256, 1275

(11th Cir. 2013) (quotation marks omitted). We will not reverse a

conviction based on a jury instructions challenge “unless we are

left with a substantial and ineradicable doubt as to whether the jury

was properly guided in its deliberations.” Id. (quotation marks

omitted). When a party expressly accepts a jury instruction, “such

action constitutes invited error” and “serve[s] to waive [his] right

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16 Opinion of the Court 23-11322

to challenge the accepted instruction on appeal.” United States v.

Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005).

a. Materiality

First, Alexander challenges the materiality instruction given

to the jury. He argues that the error in instruction rendered his trial

“fundamentally unfair” because it permitted the jury to convict Al-

exander on an invalid theory of materiality.

To begin, we review the proposed and final jury instruc-

tions. At trial, Alexander and the government each proposed jury

instructions regarding the materiality element of § 1035. The gov-

ernment’s final version proposed:

A “material” fact is an important fact – not some un-

important or trivial detail – that has a natural ten-

dency to influence or is capable of influencing a deci-

sion of a department or agency in reaching a required

decision.

Alexander’s definition of materiality was identical, and included an

additional instruction describing the relevant decision in the case:

In this case, the alleged false statement relates to a

form 855S filed by Medicare provider applicants. To

be material as to such a form, the false statement

must have a natural tendency to influence or be capa-

ble of influencing the decision to approve or deny the

request to participate or enroll as a provider of ser-

vices or supplier under a Federal health care program.

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At the charge conference, Alexander’s counsel asked the

court to give the alternative instructions he submitted, arguing that

the court’s proposed instruction was “inconsistent with the evi-

dence.” The court considered the objection and denied it. And yet,

the court’s final version of the materiality instruction incorporated

Alexander’s submission almost exactly:

A “material” fact is an important fact – not some un-

important or trivial detail – that has a natural ten-

dency to influence or is capable of influencing a deci-

sion of a department or agency in reaching a required

decision.

In this case, the alleged false statement relates to a

form 855S filed by Medicare provider applicants. To

be material as to such a form, the false statement

must have a natural tendency to influence or be capa-

ble of influencing the decision to approve or deny the

request to participate or enroll as a provider of ser-

vices or supplier under a Federal health care program.

The one and only difference between Alexander’s proposed

instructions and the final court instructions is a line break splitting

the instruction into two paragraphs. The language and the sub-

stance of the instruction are identical.

Alexander proposed the very instruction that he now chal-

lenges on appeal. “This is a textbook case of invited error.” United

States v. Maradiaga, 987 F.3d 1315, 1322 (11th Cir. 2021). We there-

fore decline to review his challenge to the jury instruction on ma-

teriality.

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b. Deliberate Ignorance

Next, Alexander argues that the district court erred in grant-

ing the government’s request for a deliberate ignorance instruc-

tion.

In a footnote in his initial brief, Alexander adopts the sum-

mary of the arguments of his co-defendant Zusmer “to the extent

[he] . . . is similarly situated in regard to those claims of error.” 5

There is no other mention in Alexander’s initial brief regarding his

argument against the deliberate ignorance instruction. The first

time he makes the argument properly is in his reply brief, and so

he waives the argument altogether. 6 See Big Top Koolers, Inc. v. Cir-

cus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008) (“We decline

5 Zusmer’s objection to the jury instruction focused on the government’s ex-

tensive evidence of his actual knowledge and involvement in the conspiracy,

which was at odds with the deliberate ignorance instruction. But this does not

apply to Alexander, who claims the opposite, to have been uninvolved in any

of the filing or day-to-day business. Because Zusmer’s argument does not ap-

ply, the adoption fails.

6 Even if we did address it, the argument still fails. The deliberate ignorance

instructions used by the court were identical to the Eleventh Circuit Pattern

Instructions. The defense did not propose any alternative instructions. At the

charge conference, Alexander’s counsel objected to the use of deliberate igno-

rance instructions because there was “no evidence of [Alexander’s] conscious

avoidance.” The district court concluded that this issue would be “a question

of fact for the jury” and overruled Alexander’s objection. There is no evidence

that the district court misstated the law or misled the jury. See Gibson, 708 F.3d

at 1275. And there is significant evidence put forth at trial to support a deliber-

ate ignorance theory—that Waxman handled the day-to-day operations of the

business and gave Alexander periodic updates and profit disbursements.

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23-11322 Opinion of the Court 19

to address an argument advanced by an appellant for the first time

in a reply brief.”).

Accordingly, we affirm the district court’s jury instructions.

VI. Forfeiture

Alexander challenges the forfeiture order issued by the dis-

trict court. We review the factual findings of a forfeiture judgment

for clear error and questions of law de novo. United States v. Es-

formes, 60 F.4th 621, 631–32 (11th Cir. 2023). District courts shall

order forfeiture of property “that constitutes or is derived, directly

or indirectly, from gross proceeds traceable to the commission of”

a federal healthcare offense. 18 U.S.C. § 982(a)(7). Courts must

make forfeiture-related findings under § 982(a) by a preponderance

of the evidence. United States v. Hasson, 333 F.3d 1264, 1278–79

(11th Cir. 2003).

Under the Federal Rule of Criminal Procedure 32.2, courts

must follow three steps in criminal forfeiture proceedings. First, a

judgment of forfeiture may not be entered unless the defendant re-

ceives notice of forfeiture in the indictment or information; second,

a court must determine the amount of money a defendant will be

ordered to pay (if a money judgment will be entered) as soon as

practical after a guilty verdict; and third, a court must promptly en-

ter a preliminary order of forfeiture setting forth the amount of any

money judgment, which it must do before sentencing unless doing

so is impractical. United States v. Farias, 836 F.3d 1315, 1329 (11th

Cir. 2016). “The failure to enter a preliminary [forfeiture] order

does not bar a judge from ordering forfeiture at sentencing subject

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20 Opinion of the Court 23-11322

to harmless-error principles on appellate review.” McIntosh v.

United States, 601 U.S. 330, 333 (2024).

First, Alexander argues that his rights were violated when

the district court permitted the government to move forward with

a new forfeiture claim that was introduced post-sentencing. Before

we dive into Alexander’s argument, we will detail the timeline of

the proceedings in the district court.

The government first moved for a preliminary order of for-

feiture on April 19, 2023, the day before the sentencing hearing.

The government calculated that the total value of gross proceeds

obtained by Alexander traceable to his offense of conviction was

$125,000. At sentencing, Alexander’s counsel asked to postpone the

restitution and forfeiture determinations until after sentencing be-

cause the government’s motion violated the timing requirement of

Federal Rule of Criminal Procedure 32.2(b)(2)(B). Additionally, Al-

exander’s counsel took issue with the government’s lack of evi-

dence supporting the $125,000 calculation. The district court post-

poned the issue of forfeiture and restitution for later resolution to

give the defense a chance to respond to the government’s motion.

On May 3, 2023, Alexander responded in opposition to the

government’s motion. Alexander “contest[ed] the government’s

forfeiture motion on multiple grounds, including factual, proce-

dural, and estoppel grounds.” Alexander requested that the court

deny the forfeiture motion as untimely.

Eventually, the forfeiture and restitution hearing was held

on June 27, 2023. The government proposed a forfeiture order of

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23-11322 Opinion of the Court 21

$125,000, based on the record at trial and Waxman’s testimony.

Waxman testified that when Silent Hill shut down, he withdrew

most of the money from the business bank account and split it be-

tween himself and Alexander. The bank account reflected two

withdrawals for a total of $345,000, making $125,000 a conservative

estimate of what Alexander would have received. Alexander’s

counsel objected to this estimation, arguing that “the Government

cannot after sentencing come up with a new basis for asserting for-

feiture . . . than it claimed in the pre-sentencing motion.” Alexan-

der repeated his initial argument that the government’s claim failed

to properly trace the money back to his bank accounts. At the con-

clusion of the arguments, the district court entered a forfeiture or-

der for $125,000.

The district court erred by failing to enter a preliminary or-

der of forfeiture in advance of sentencing. Farias, 836 F.3d at 1330.

But “[n]oncompliance with Rule 32.2(b)(2)(B)’s timing require-

ment is a procedural error subject to harmlessness review.” McIn-

tosh, 601 U.S. at 344. Here, the procedural error was harmless. The

record establishes that Alexander had fair notice prior to the forfei-

ture hearing that the government would seek forfeiture. Alexander

was informed at the time of the indictment, prior to sentencing, at

sentencing, and prior to the forfeiture hearing. Not only did Alex-

ander have fair notice, but the district court postponed the hearing

for the sole purpose of giving Alexander time to properly respond.

Alexander explicitly agreed with this approach at the sentencing

hearing and proceeded to file a response less than a month later.

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22 Opinion of the Court 23-11322

Additionally, Alexander had specific notice of the forfeiture

amount. Waxman testified at trial that he made two withdrawals

amounting to $345,000, split between himself and Alexander. The

final amount of $125,000 was the same amount the government

calculated in their first motion for forfeiture. And Alexander was

given a full opportunity to contest this amount at the hearing. He

has failed to show “prejudice sufficient to void the forfeiture or-

der.” McIntosh, 601 U.S. at 345. We can confidently say that the pro-

cedural error was harmless.

Second, Alexander argues that the government’s theory is

speculative and does not meet the burden of traceability under 18

U.S.C. § 982(a)(7). We are unpersuaded. The trial judge explained

at the forfeiture hearing that he “heard the testimony of Mr. Wax-

man” and is “satisfied that the evidence supports the fact that those

amounts were fairly traceable.” This meets the preponderance of

the evidence standard. See Hasson, 333 F.3d at 1278–79.

Alexander had ample notice of the type and scope of forfei-

ture sought, and the government has shown by a preponderance

of the evidence that the amount is traceable to the offense. Accord-

ingly, we affirm.

VII. Restitution

Lastly, Alexander challenges the restitution order. He argues

that the district court erred when it entered a restitution order

against him because the government failed to show that the false

statement caused actual loss. The government responds that his

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23-11322 Opinion of the Court 23

false statement offense caused losses on all claims submitted by Si-

lent Hill after the January 2019 form. Like forfeiture, we review the

restitution award’s “factual findings for clear error and questions of

law de novo.” Esformes, 60 F.4th at 631–32.

The Mandatory Victims Restitution Act (MVRA) requires

district courts to order defendants to pay restitution to victims of

certain offenses, “including any offense committed by fraud or de-

ceit.” 18 U.S.C. § 3663A. The Act defines a victim as “a person di-

rectly and proximately harmed as a result of the commission of”

such an offense. 18 U.S.C. § 3663A(a)(2). It directs district courts to

resolve any disputes over the proper amount of restitution by a

preponderance of the evidence. 18 U.S.C. § 3664(e).

“The purpose of restitution is not to provide a windfall for

crime victims but rather to ensure that victims, to the greatest ex-

tent possible, are made whole for their losses.” United States v. Mar-

tin, 803 F.3d 581, 594 (11th Cir. 2015) (citation modified). For that

reason, “[r]estitution is not designed to punish the defendant.” Id.

at 595. To accomplish restitution’s purpose, a court must base the

amount of restitution awarded to the victim on the amount of loss

that the defendant’s conduct “actually caused.” United States v. Huff,

609 F.3d 1240, 1247 (11th Cir. 2010) (citation modified). “That

means that, in a restitution order, the court must account for any

value that a defendant’s scheme bestowed on the victim.” United

States v. Young, 108 F.4th 1307, 1319–20 (11th Cir. 2024). Under the

MVRA, sentencing courts must order restitution for a victim’s “ac-

tual loss directly and proximately caused by the defendant’s offense

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24 Opinion of the Court 23-11322

of conviction.” United States v. Collins, 854 F.3d 1324, 1336 (11th Cir.

2017) (citation modified).

Recently, we've said in relation to restitution for a scheme

to defraud the Federal Employee's Compensation Act healthcare

program:

As we've noted, in fraud cases, a conviction inher-

ently means that the paying victim experienced at

least some loss. So if the defendant is convicted, that

means the government has already shown loss. For

that reason, it makes sense for the restitution amount

to initially include the entire amount the victim enti-

ties paid related to the fraudulent scheme, and then

for the defendant to be able to offset that amount by

the value of any goods or services she can prove were

medically necessary.

Young, 108 F.4th at 1322 (vacating a restitution award where the

record did not show whether the calculated loss was due to medi-

cally necessary prescriptions).

Here, the district court ordered Alexander to pay

$315,704.52 in restitution—the amount reflecting payments made

by Medicare to Silent Hill for claims submitted after the January

2019 form. We review this factual finding for clear error. See United

States v. Robertson, 493 F.3d 1322, 1334 (11th Cir. 2007). Alexander

does not dispute the amount of restitution owed, but that restitu-

tion is owed at all. He argues that the evidence at trial does not

show that the January 2019 form was ever processed by Medicare,

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23-11322 Opinion of the Court 25

much less relied upon. And without evidence of actual reliance, he

argues that restitution is unwarranted.

We agree. Restitution is not simply used as punishment, and

as such, there needs to be a showing of specific losses that the vic-

tim would not have otherwise incurred. For example, in Young, a

doctor challenged a restitution award after he was convicted of par-

ticipating in a kickback scheme. 108 F.4th at 1323. We determined

that it was not enough that he participated in the general fraud

scheme; the government had to show by a preponderance of the

evidence that each kickback he received was fraudulent. Id.

The government suggests that because the jury found the

false statement to be material to Medicare’s decision to continue

Silent Hill’s enrollment, every service billed after the false state-

ment was submitted is a target of the restitution award. Essentially,

that the false statement caused Medicare under false pretenses to

pay money it would not otherwise have. The district court relied

in part on Collins in calculating the restitution award. But the de-

fendant in Collins was convicted of a conspiracy, 854 F.3d at 1329,

unlike here, where Alexander was acquitted of the larger conspir-

acy. See Hughey v. United States, 495 U.S. 411, 418 (1990) (holding

that restitution orders should not expand beyond the scope of the

convicted offense). And as the government conceded at the restitu-

tion hearing, there is no Eleventh Circuit case that addresses resti-

tution for a § 1035 conviction alone.

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26 Opinion of the Court 23-11322

In the absence of a conspiracy conviction, we must instead

determine what actual losses Medicare suffered because of the sin-

gular false statement made in January 2019. “Our deference to the

district court is not unlimited, and we will hold a finding of fact

clearly erroneous if the record lacks substantial evidence to support

it.” Robertson, 493 F.3d at 1335 (citation modified). Here, there is

insufficient evidence to support the district court’s factual finding.7

Even accepting Young's presumption that a fraud conviction

“inherently means that the paying victim experienced at least some

loss,” the record does not show that the government specifically

relied on Alexander’s false statement. 108 F.4th at 1322. Prior to the

restitution hearing the parties submitted joint stipulations, two of

which are relevant here. First, that “the government has not pro-

duced to date a letter of receipt or a letter of processing by the Med-

icare contractor for the January 2019 855S form for Silent Hill.”8

7 We pause to note that the government’s burden for restitution differs from

that of the underlying § 1035 conviction. To be convicted of making a false

statement, the government need not prove that the statement was ever relied

upon, but just that it was capable of influencing the decisionmaker. See Hen-

derson, 893 F.3d at 1346. The standard for restitution is different. Here, the false

statement must have actually and proximately caused the loss. At the restitu-

tion hearing, the district court appears to confuse these two standards. The

court treated Alexander’s reliance argument as one “the jury [already] re-

jected.” But the jury was not asked to determine reliance at trial—they were

asked only whether the false statement was capable of influence. The evidence

to support a § 1035 conviction is not necessarily sufficient to support an order

of restitution.

8 Alexander concedes that the form was eventually found in Medicare’s files

and presented at litigation. But reception of the document alone does not

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23-11322 Opinion of the Court 27

Second, that “the government did not offer evidence at trial as to

when the referenced changed enrollment information was re-

viewed by the Medicare contractor.” Instead, the government ar-

gued that Medicare likely would not have allowed Silent Hill to re-

tain its billing privileges and may have even reversed past claims.

But the chance of reliance is not equivalent to reliance itself.

Despite this evidentiary shortcoming, the district court was

satisfied that because Alexander was convicted of the submitting a

false statement, “the natural consequence of” that conviction was

that Silent Hill obtained payments from Medicare. We disagree.

We find that there is insufficient evidence to support this finding

because nothing in the record suggests that the Medicare provider

ever reviewed or acted on the January 2019 form. See United States

v. Stein, 846 F.3d 1135, 1156 (11th Cir. 2017) (holding that the gov-

ernment must establish by a preponderance of the evidence that

the victims relied on the fraudulent information).9 Without any

causal link between the January 2019 form and the later claims, the

government has failed to show the amount of loss that Alexander’s

conduct actually caused. Thus, the district court’s factual finding is

clearly erroneous.

Accordingly, we vacate the restitution award.

prove reliance. And speculation that Medicare might have relied upon the doc-

ument is not enough to meet the government’s burden.

9 The district court also failed to account for any value that the submitted

claims may have bestowed upon Medicare, as required. Young, 108 F.4th at

1319–20.

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28 Opinion of the Court 23-11322

VIII. Conclusion

We affirm the judgment of the district court, but we vacate

the restitution order and remand for proceedings consistent with

this opinion.

AFFIRMED IN PART, AND VACATED IN PART AND

REMANDED.