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May 26, 2023

Exclusion of 'Device' as a Statutory Element in Health Care Fraud Pursuant to 18 U.S.C.A. § 1347(a) Despite Inclusion in the Indictment Charge

In United States v. Naushad, the U.S. Court of Appeals for the Eight Circuit upheld the conviction of Dr. Abdul Naushad and Wajiha A. Naushad for health care fraud and conspiracy. The Naushads had injected patients with non-FDA-approved Orthovisc, falsely representing to Medicare that they were using  FDA-approved Orthovisc. The Naushads contended that the government needed to prove that non-approved Orthovisc qualified as a "device" under the Federal Food, Drug, and Cosmetic Act (“FDCA”), as per the jury instructions and the indictment. However, the appeals court rejected their argument, stating that the sufficiency of the evidence supporting the conviction should be evaluated based on the statutory elements of the charged crime, not based on erroneous jury instructions. Even if the "device" element were crucial, the appeals court found that the government presented sufficient evidence demonstrating that  Orthovisc met the definition of a device under the FDCA. The court also rejected the Naushads' other grounds for a new trial, including the exclusion of specific evidence and instructions.

The Naushads failed to provide any legal authority supporting their claim that their indictment might require proof of elements in addition to those required by the statute. Such arguments only undermine a counsel's credibility and could potentially harm the client's interests during the appeals process.

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