Merely ending one's activity in a conspiracy does not constitute withdrawal. Withdrawal from a conspiracy is only a defense if the actor affirmatively withdrew; it is not enough that he merely ceased to participate. Thus, in the Eleventh Circuit, it has long been necessary that the conspirator prove that he undertook affirmative steps to disavow or to defeat the objects of the conspiracy. The defense of withdrawal is not available to one who merely ends his participation in the conspiracy.
The jury convicted first appellant licensed physician's assistant of (1) conspiracy to commit health care and wire fraud, and (2) conspiracy to make false statements relating to health care matters. The jury convicted second appellant, a patient recruiter, of (1) conspiracy to commit health care and wire fraud, (2) conspiracy to pay and receive bribes and kickbacks in connection with a federal health care benefit program, and (3) receipt of bribes and kickbacks in connection with a federal health care benefit program. Having already denied motions for acquittal from appellants during the trial, the district court later denied first appellant's post-trial motions for judgment of acquittal and for new trial, as well as second appellant's post-trial motion for new trial. Both appellants appealed their convictions and sentences. The court of appeal affirmed the convictions and sentences.
Did first appellant establish his defense of withdrawal from the conspiracy to commit fraud as a matter of law so that the district court should have granted his motion for judgment of acquittal and not have submitted the withdrawal issue to the jury?
The district court did not err in submitting the withdrawal issue to the jury and in denying first appellant's motion for acquittal as a matter of law. The question was whether first appellant took affirmative steps "to disavow or defeat" the conspiratorial objectives by ceasing his work at the company involved in the health case scam. Because there was conflicting evidence as to the reasons he left the employment of that company, the issue of whether he had withdrawn from the fraud conspiracy was an issue of fact.