Health Law Daily Wrap Up, FRAUD AND ABUSE—11th Cir.: Eleventh Circuit affirms criminal conspiracy and Anti-Kickback Statute convictions, (Aug 25, 2026)

By Donielle Tigay Stutland, J.D.

The Eleventh Circuit upheld the convictions and sentences of a Florida pain physician and an Insys sales representative, after finding sufficient evidence of an Anti-Kickback Statute conspiracy.

The Court of Appeals for the Eleventh Circuit affirmed the convictions and sentences of a pain-management physician and an Insys sales representative for participating in the company’s nationwide scheme to pay physicians kickbacks through sham speaker programs in exchange for prescribing Subsys, a fentanyl spray, in violation of the Anti-Kickback Statute (AKS). On appeal, the Eleventh Circuit found the evidence sufficient to show a conspiracy as well as to affirm the substantive offenses (United States v. Chun, No. 22-14192 (11th Cir. Aug. 18, 2026)).

Background. The case is related to federal litigation which involved a federal kickback scheme for a prescription medication, United States v. Simon, 12 F.4th 1 (1st Cir. 2021). In that case, the First Circuit affirmed the convictions of the founder and four executives of Insys Therapeutics, Inc. (Insys), under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d), for conspiring to bribe physicians to prescribe Subsys, a fentanyl-laced spray medication administered beneath the tongue (United States v. Simon). Insys developed, and the U.S. Food and Drug Administration (FDA) approved, Subsys in early 2012 for use in the treatment of breakthrough cancer pain. The drug manufacturer had implemented a nationwide “speaker program” that paid high-prescribing physicians substantial honoraria for speaking at educational dinners. In reality, the dinners were often sparsely attended (or attended only by family/friends), lacked educational content, and featured forged sign-in sheets.

Following that suit the Insys’ President and Chief Executive Officer, and Insys’ Vice President of Sales, pleaded guilty to the RICO conspiracy and testified as prosecution witnesses against prescribing physicians who were part of the scheme. One defendant was a Florida pain-management physician and Medicare provider, and was described as a top-decile (whale) prescriber. In July 2012, the physician signed an Insys speaker agreement as the first physician to do so. Between 2012 and 2015 the physician received approximately $278,900 in speaker honoraria. The other defendant was the Insys sales representative covering the physician’s territory, and he arranged the majority of the programs for the physician.

A Middle District of Florida grand jury indicted the physician and the sales representative in 2020. Count 1 charged conspiracy under 18 U.S.C. § 371 to violate the AKS (involving the physician, the sales representative, the CEO, the Vice President of Sales, and others). After a May 2022 jury trial, the physician was convicted on the conspiracy and five AKS receipt counts; The sales representative was convicted on the conspiracy, five AKS payment counts, and two identity-fraud counts. The district court sentenced the physician to concurrent 42-month terms and the sales representative to concurrent 48-month terms (both with three years of supervised release), downward variances from advisory Guidelines ranges driven by approximately $4.45 million in Medicare payments for the physician’s Subsys prescriptions treated as the “improper benefit conferred.” The convictions were appealed.

Conspiracy. The court first reviewed the conspiracy count, that the physician conspired to violate the Anti-Kickback Statute. The elements of conspiracy are “(1) an agreement among two or more persons to achieve an unlawful objective; (2) knowing and voluntary participation in the agreement; and (3) an overt act by a conspirator in furtherance of the agreement.”

Here, the government alleged that from August 2012 through July 2015, the physician was a member of a conspiracy consisting of himself, Insys, the CEO, the Vice President of Sales, and others. The conspirators’ objective was to violate the Anti-Kickback Statute by paying physicians to prescribe Subsys. Although the parties’ actual contract provided that the payment to the physician as speaker would be consistent with the fair market value of the services provided by the speaker and not based on the volume or value of any business the speaker generated for Insys.

Not only did an Insys executive testify that such language was “just fluff language that no one at the company reads, nor do any of the physicians read,” the court also found other evidence of an agreement. Some evidence offered besides testimony that such practices took place, were that the sales representative, who made the arrangements for the majority of the physician’s speaker programs, testified that he set up 100 programs. By the time the Insys speaker program had run its course in 2015, the physician had received honoraria totaling $278,900.

The court affirmed the jury’s finding that that the physician conspired with four of his co-conspirators—Insys, the CEO, the Vice President of Sales, and the sales representative—to violate the Anti-Kickback Statute.

Anti-Kickback Statute. The court next reviewed the Anti-Kickback Statute substantive counts. It was alleged that the physician received kickbacks in the form of speaker honoraria for programs that took place in restaurants in Florida: in Sarasota on April 14 and 28, May 4 and 9, and June 16, and in Naples twice on May 8. The honoraria totaled $16,700.

First, the Anti-Kickback Statute prohibits a practitioner from “knowingly” accepting remuneration in exchange for “any item or service for which payment may be made in whole or in part under a Federal health care program.” 42 U.S.C. § 1320a-7b(b)(1). Further the court cited United States v. Shah, in which the Fifth Circuit held that the Government need only show that the defendant “knowingly agreed to accept remuneration for referring patients that could be federally insured.” The court highlighted that here, the Government offered evidence that the physician had participated in the Medicare program, and, therefore, that he had Medicare patients. Based on this, the court concluded that a jury had sufficient evidence to find that the physician knowingly agreed to accept remuneration for referring patients who could be federally insured.

Next, willful conduct under the Anti-Kickback Statute requires that the act be “committed voluntarily and purposely, with the specific intent to do something the law forbids.” Here, the court found that the physician mistook where the intent applied. The court stressed that the “crime was not forging the signatures of physicians and others who did not attend his programs. His crime was being paid to prescribe—for which the Government provided ample evidence.” The court concluded that the jury had ample evidence to convict the physician.

Finally, the court addressed the sales representative’s argument that as an employee of Insys, the AKS safe-harbor should apply to him (§ 1320a-7b(b)(3)(B)). The Fifth Circuit noted that it has previously held that the safe harbor provision contained in 42 U.S.C. § 1320a-7b(3)(B) is an affirmative defense. Here, because the sales representative failed to raise this affirmative defense at trial, the court determined that it was waived.

The Case is No. 22-14192.

Judge: Tjoflat, G.

Attorneys: Holly Lynn Gershow, U.S. Department of Justice, for the U.S. Jason Jervis Wise (Brunvand & Wise Law Group) for Steven Chun.

Companies: Insys Therapeutics, Inc.

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