Restitution; Mandatory Victims Restitution Act (MVRA); 18 USC § 3663A; Whether the scope of the restitution order could include “legitimate medical claims”; § 3663A(b)(1); Whether the district court’s apportionment of restitution violated § 3664(h); Whether the restitution order as to the IRS was substantiated; Challenges to defendant’s convictions; Jury instruction defining “knowingly & willfully” in the healthcare fraud statute (§ 1347); Instruction that omissions & concealment could support a healthcare fraud conviction in this case; Plain error review; The invited-error doctrine; Whether challenged testimony violated defendant’s substantial rights

The court vacated the district court’s restitution order as to Fiat Chrysler in this healthcare fraud case where it included medically necessary prescriptions in the award and failed to properly apportion the level of each defendant’s contribution. It also erred when assigning loss to the IRS where its calculations were “unsubstantiated.” But it affirmed defendant-Clay’s convictions. He was convicted of conspiracy to commit healthcare fraud, healthcare fraud, and making a false statement to the IRS. In addition to receiving prison sentences, he was ordered to pay $7 million in restitution. He challenged the restitution order as it pertained to Fiat Chrysler (whose self-insured health benefits plan was billed for the prescriptions involved in scheme leading to Clay’s convictions) and the IRS. He argued that the district court erred by including “legitimate medical claims” in the Fiat Chrysler restitution calculation. The court agreed, finding this assertion supported by the MVRA and restitution case law. “[M]edically necessary claims are not a ‘loss’ and thus cannot be included in a restitution order.” It also agreed that the district court’s apportionment of the Fiat Chrysler restitution order violated § 3664(h) where it failed to consider other individuals’ contribution to Fiat Chrysler’s losses. Further, it held that the error was not harmless. The court next held that the restitution granted to the IRS was an abuse of discretion where it was “unsubstantiated” and essentially relied on the government’s “say-so.” But it rejected Clay’s challenges to his convictions, finding that he stipulated to the instructions he now challenged and as to the “knowingly and willfully” instruction, he failed to show “a ‘grave miscarriage of justice’ or that any error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’” And the court found no error in the instruction as to omissions and concealment where it has upheld “fraud convictions under § 1347 based on knowing concealment of material information absent a duty to disclose” and this foreclosed “Clay’s only argument in support of a finding of plain error.” Additionally, none of the testimony he challenged affected his substantial rights. Affirmed in part, vacated in part, and remanded.