The Anti-Kickback Statute (42 USC § 1320a-7b); Denial of proposed jury instruction on an advice-of-counsel defense; Denial of a motion for a mistrial based on alleged prosecutorial misconduct; Prejudice; Hearsay; Failure to renew an argument in the district court

The court held that the district court did not abuse its discretion by finding that the prosecutor’s remark about defendant-Harris’s attorneys’ law firm did not prejudice defendant and did not require a new trial. Further, the district court did not abuse its discretion in denying his request for a jury instruction on an advice-of-counsel defense. A jury convicted Harris of violations of the Anti-Kickback Statute. He first argued on appeal that the district court erred by denying his proposed jury instruction on his advice-of-counsel defense. But the court noted that he had “failed to disclose all pertinent facts to his attorney.” Significantly, he did not inform counsel that he paid his employees for each patient instead of paying them a regular salary. This fact was crucial to the legality of his actions, and the district court did not err by declining to give the instruction. Harris also argued that the district court abused its discretion by not granting him a requested mistrial based on the prosecutor’s reference to Harris’s defense team and his prior dealings with their law firm. As the government did “not dispute that the prosecutor made an improper remark[,]” the court reviewed the four relevant considerations in determining whether prosecutorial misconduct prejudiced a defendant. It held that the district court did not abusee its discretion by finding that the prosecutor’s remark did not prejudice Harris. The remark had “little potential to mislead” the jury where Harris’s objection prevented a response and “the district court told the jury to disregard the comment.” In addition, the government’s case was strong, the remark was “isolated,” and its “brevity” made it appear “more like a spur-of-the-moment mistake than a Machiavellian maneuver.” Finally, the court held that the district court did not err by admitting only part of a recorded meeting between Harris, his business partners, and a pair of federal law-enforcement officers based on hearsay concerns, noting that he never renewed his objection to “this half-measure” and finding that the district “court correctly appreciated that the full tape contained inadmissible hearsay.” Affirmed.