United States v. Kidd, No. 18-3327 (8th Cir. 2020)
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The Eighth Circuit affirmed Defendants Burke, Ibrahim, and Kidd's convictions of mail fraud and conspiracy to commit mail fraud. The court held that the evidence was sufficient to support the convictions; the district court did not err in denying defendants' motion to strike references to the Minnesota anti-runner statute as surplusage; defendants' proposed jury instructions regarding the runner payments misstated the law and thus the district court properly declined to use it; the district court did not err by giving the final instruction that defined a scheme to defraud and, even assuming that the reference to omitting material facts was error, the error was harmless; and defendants' claims of prosecutor misconduct are rejected.
Finally, the court affirmed Burke's sentence, holding that the district court did not err in calculating his advisory guideline range; the district court did not err by applying a two-level increase for obstruction of justice under USSG 3C1.1; and the district court did not erroneously make a finding that encompassed all elements of perjury.
Court Description: [Colloton, Author, with Wollman and Kelly, Circuit Judges] Criminal case - Criminal law and sentencing. The evidence was sufficient to support the defendants' convictions for conspiracy to commit mail fraud and mail fraud in connection with their scheme to bill insurers for chiropractic services that were either not medically necessary or not performed; evidence of defendant Burke's use of runners to drum up business was material because services delivered after the use of runners are noncompensable under Minnesota law; giving force to the noncompenability provision of Minnesota law does not render another provision of the No-Fault Insurance act superfluous; no error in denying defendants' motions to strike references to the Minnesota anti-runner statute as surplusage in the original indictment; no error in rejecting defendants' requests for jury instructions that the runner payments were not material if the services rendered were reasonable and medically necessary as such an instruction misstated the law; instruction on scheme to defraud was not error in the context of the instructions as a whole; claim of government misconduct during rebuttal argument rejected; the court correctly determined the estimated loss from Burke's conduct in calculating his offense level; no error in imposing an enhancement for obstruction of justice under Guidelines Sec. 3C1.1 where the court concluded defendant Burke perjured himself at trial.
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