US v. McMillan, No. 08-31148 - Criminal Law - U.S. Fifth Circuit
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US v. McMillan, No. 08-31148

In US v. McMillan, No. 08-31148, the court of appeals dealt with defendant's wire and mail fraud convictions and sentences.

As described by the court: "This case concerns a scheme by defendants Barry Scheur and Robert McMillan to fraudulently represent the financial condition of The Oath for Louisiana, Inc., a Louisiana-licensed HMO. The Oath, as an HMO or plan, collected premiums and insured the medical expenses of its subscribers. The Government charged that the defendants devised a scheme to defraud and obtain money or property by filing false financial reports with the Louisiana Department of Insurance indicating that the HMO met minimum statutory net worth requirements in order to ensure the continued operation of the plan and
the collection of premiums and management fees at a time when The Oath did not satisfy state requirements."

The circuit court affirmed the judgment below, holding that 1) the superseding indictment did not broaden the charges against the defendants; 2) Cleveland's requirement that the object of the fraud be actual money or property in the hands of the victim was satisfied; 3) the district court gave an immediate curative instruction, in response to objections during the prosecutor's closing remarks, that the government bore the burden of proof and the defendants need not testify or prove anything; and 4) the district court did not clearly err by finding that defendants' business would have suffered catastrophic losses had it been closed rather then permitted to continue in operation and that the amount of loss attributable solely to the defendants could not be reasonably calculated.

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