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March 24, 2026 Get Citation Alerts Download PDF Add Note

United States v. Lawrence Alexander

Court of Appeals for the Eleventh Circuit

• Citations: None known
• Docket Number: 23-12282

• Nature of Suit: CON

• Opinion

• Authorities (30)

• Cited By (0)

• Summaries (0)

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Combined Opinion

USCA11 Case: 23-11322 Document: 102-1 Date Filed: 03/24/2026 Page: 1 of 28

FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit

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No. 23-11322

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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

LAWRENCE ALEXANDER,
Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cr-60253-KMM-2

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---

No. 23-12282

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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
USCA11 Case: 23-11322 Document: 102-1 Date Filed: 03/24/2026 Page: 2 of 28

2 Opinion of the Court 23-11322

LAWRENCE ALEXANDER,
Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cr-60253-KMM-2

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Before MARCUS and WILSON, Circuit Judges, and JONES,* District
Judge.
WILSON, Circuit Judge:
Defendant-Appellant Lawrence Alexander is an orthopedic
surgeon who was charged with one count of conspiracy to defraud
the United States and to pay health care kickbacks, in violation of
18 U.S.C. § 371; and one count of making a false statement relating
to health care matters, in violation of 18 U.S.C. § 1035. A jury ac-
quitted Alexander on the conspiracy count but convicted him on
the false statement count. He was sentenced to thirty-three months
of imprisonment followed by three years of supervised release, and
he was ordered to pay $315,704.52 in restitution and to forfeit
$125,000.
Alexander raises seven issues on appeal: (1) whether venue
was improper; (2) whether the district court erred in denying Alex-
ander’s motion to dismiss the indictment under § 1035 for failure

• Honorable Steve C. Jones, United States District Judge for the Northern Dis-

trict of Georgia, sitting by designation.
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23-11322 Opinion of the Court 3

to state an offense; (3) whether the evidence was sufficient to con-
vict Alexander under § 1035; (4) whether the evidence was suffi-
cient to support a theory of aiding and abetting; (5) whether the
district court improperly instructed the jury regarding materiality
and deliberate ignorance; (6) whether the district court erred in or-
dering forfeiture; and (7) whether the district court erred in order-
ing restitution.
We affirm the district court on all issues apart from restitu-
tion. On the issue of restitution, we vacate the district court’s order
and remand for further proceedings consistent with this opinion.
I. Background
a. Factual History
In 2016, Alexander and co-defendant Jeremy Waxman cre-
ated a durable medical equipment (DME) company named Silent
Hill Bracing and Orthopedic Supplies, LLC (Silent Hill). Waxman
was a successful medical supply businessman who owned other
DME companies. Waxman approached Alexander, along with a
few others, to propose a new DME partnership. Waxman hoped to
reduce Medicare scrutiny surrounding the volume of his own DME
business. Partnering with Alexander allowed for further distribu-
tion of DME products through an entity formally owned by some-
one other than himself. Like Waxman’s other DME companies, Si-
lent Hill purchased doctor’s orders for orthopedic braces and then
billed Medicare for them.
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4 Opinion of the Court 23-11322

Waxman and Alexander agreed that Alexander would con-
tribute a substantial financial investment and Waxman would han-
dle the day-to-day operations. Because the listed owner had to pro-
vide a personal financial guarantee for the business, Alexander sug-
gested listing the company under his mother, Susan Alexander. Ac-
cording to Waxman, Alexander reasoned that “her credit’s already
bad anyway.” Alexander had other companies under her name, and
Silent Hill was the town where she was born. Susan Alexander was
the only person identified on Silent Hill’s application with Medicare
as a DME provider, even though she had no role in the business and
was not an owner. Alexander supplied Waxman with the necessary
identifying information for his mother, and Waxman would sign
Alexander and his mother’s name with Alexander’s permission.
Alexander and Waxman submitted a CMS 855S form, titled
“Medicare Enrollment Application,” on January 14, 2019. This
form is the basis of the § 1035 false statement count. DME compa-
nies like Silent Hill are required to submit 855S forms to Medicare
when first enrolling, when recertifying their enrollment every five
years, and when making any changes to their Medicare enrollment
status. The January 2019 form in question was submitted to notify
Medicare that Silent Hill had changed their hours of operations.1
The form falsely listed Susan Alexander as the business owner and
contained a certification of its truth.

1 In 2016, Silent Hill filed an original enrollment CMS 855S form, but that en-

rollment application is not included in the instant offense.
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23-11322 Opinion of the Court 5

Silent Hill ceased operations in April 2019 after Medicare
suspected fraud.
b. Procedural History
In 2021, in a multi-count, multi-defendant indictment, a
grand jury indicted Alexander with one count of conspiracy to de-
fraud the United States and pay healthcare kickbacks in violation of
18 U.S.C. § 371 (Count 6), and one count of making a false state-
ment relating to health care matters in violation of 18 U.S.C. § 1035
(Count 19). The indictment also charged co-defendants Waxman,
Dean Zusmer, Ronald Davidovic, and Umut Vardar. Only Alexan-
der and Zusmer proceeded to trial.
Before trial, Alexander moved to dismiss the false statement
count, arguing that the CMS 855S did not fall within the billing-for-
services scope of § 1035. The district court denied the motion, con-
cluding that the form qualified under § 1035 as an enrollment ap-
plication that initiates enrollment and permits the provider to bill
Medicare.
At trial, the government argued that Alexander aided and
abetted the submission of an application for Medicare enroll-
ment—the January 2019 form—from which he willfully omitted
ownership and management disclosures required by Medicare for
enrollment and payment authorization purposes. Alexander
moved for a judgment of acquittal three times: at the close of the
government’s case, at the close of evidence, and in a post-trial mo-
tion. The district court denied all three motions.
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6 Opinion of the Court 23-11322

The jury found Alexander guilty on the false statement
count but acquitted him on the conspiracy count. The court sen-
tenced him to thirty-three months of imprisonment to be followed
by three years of supervised release. The court ordered Alexander
to pay $315,704.52 in restitution and to forfeit $125,000. Alexander
timely appealed.
II. Venue
Turning to Alexander’s arguments, he first challenges
whether the Southern District of Florida was the proper venue. We
review de novo the district court’s venue determination. United
States v. Muench, 153 F.3d 1298, 1300 (11th Cir. 1998). We must de-
termine “whether, viewing the evidence in the light most favorable
to the government and making all reasonable inferences and cred-
ibility choices in favor of the jury verdict[,] the [g]overnment
proved by a preponderance of the evidence that the offense took
place within the trial district.” United States v. Burroughs, 830 F.2d
1574, 1580 (11th Cir. 1987) (citation modified). The government’s
burden is satisfied when “circumstantial evidence as a whole rea-
sonably supports the inference that the crime was committed in the
trial district.” United States v. Bradley, 644 F.3d 1213, 1253 (11th Cir.
2011) (citation modified).
Alexander argues venue was improper because the govern-
ment offered no evidence as to who filled in the form, who signed
it, who submitted it, who, if anyone, authorized its submission or
where the form was sent from. We disagree. There is overwhelm-
ing circumstantial evidence reasonably supporting the inference
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23-11322 Opinion of the Court 7

that the crime took place in the Southern District of Florida. Silent
Hill is located in the Southern District of Florida, Alexander and
Waxman both lived there at the time, and Waxman’s office was
there. Evidence also suggests Waxman submitted the CMS 855S
form from his office. He testified “[m]y office was filing the appli-
cations,” and the charged 855S form was “[s]ubmitted by my busi-
ness on behalf of Silent Hill.”
The government has shown by a preponderance of evidence
that the offense took place in the Southern District of Florida.
Thus, we affirm the district court’s determination that venue was
proper.
III. Motion to Dismiss the Indictment
Next, Alexander challenges whether the district court erred
in denying his motion to dismiss Count 19 of the indictment. We
“review de novo whether an indictment sufficiently alleges an of-
fense” and “review for abuse of discretion a denial of a motion to
dismiss an indictment.” United States v. Gbenedio, 95 F.4th 1319,
1327 (11th Cir. 2024).
Alexander argues that the indictment must be dismissed be-
cause it fails to state an offense under § 1035(a)(2). Section
1035(a)(2) criminalizes false statements made in connection with
Medicare billing and services submissions. In Alexander’s view, the
January 2019 form was merely a notice of a change of hours at Si-
lent Hill, and not, as the government argues, a form that could in-
fluence Medicare billing or services submissions. Alexander argues
that there is no indication that non-billing matters fall within the
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8 Opinion of the Court 23-11322

scope of § 1035. In response, the government argues that the indict-
ment properly alleged that Alexander and Waxman violated
§ 1035(a)(2) by submitting a CMS 855S form to Medicare that con-
tained “a materially false, fict[it]ious, and fraudulent statement and
entry, in connection with the delivery [of] and payment for health
care items and services,” by listing Susan Alexander as the sole
owner and managing employee of Silent Hill.
An indictment “presents the essential elements of the
charged offense,” “notifies the accused of the charges to be de-
fended against,” and “enables the accused to rely upon a judgment
under the indictment as a bar against double jeopardy for any sub-
sequent prosecution for the same offense.” United States v. Jordan,
582 F.3d 1239, 1245 (11th Cir. 2009) (per curiam) (citation modi-
fied). “An indictment that tracks the language of the relevant stat-
ute is sufficient, as long as it also provides a statement of facts and
circumstances that give notice of the offense to the accused.” Id. at
1246 (quotation marks omitted). But an indictment need not “al-
lege in detail the factual proof that will be relied upon to support
the charges.” United States v. Sharpe, 438 F.3d 1257, 1263 n.3 (11th
Cir. 2006) (citation modified).
Alexander’s indictment is legally sufficient. Count 19 of the
indictment directly tracks the language of § 1035(a)(2). The count
specifically identified the false statement as his “signing and submit-
ting to Medicare a CMS Form 855S certifying that [Susan Alexan-
der] was the sole owner and managing employee of Silent Hill,
when . . . [Susan Alexander] was not the sole owner and managing
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23-11322 Opinion of the Court 9

employee of Silent Hill.” The indictment also included factual alle-
gations that:
(i) a provider is required to submit a Medicare enroll-
ment application CMS Form 855S to participate in
Medicare; (ii) a provider enrollment form requires ap-
plicants to disclose individuals or organizations with
ownership or partnership interests in a DME supplier;
(iii) upon approving an enrollment application, Med-
icare assigns a provider a “provider number” that en-
ables the provider to submit claims to Medicare for
reimbursement.

In total, the indictment described the offense with statutory
language and included the facts and circumstances of the charged
offense. Thus, the indictment is facially sufficient. We therefore af-
firm the district court’s denial of Alexander’s motion to dismiss.
IV. Sufficiency of the Evidence
Next, Alexander challenges the district court’s denial of his
motion for a judgment of acquittal. This court “review[s] de novo
a district court’s denial of judgment of acquittal on sufficiency of
evidence grounds, considering the evidence in the light most favor-
able to the government, and drawing all reasonable inferences and
credibility choices in the government’s favor.” United States v. Mor-
ley, 99 F.4th 1328, 1336 (11th Cir. 2024) (citation modified). “A
jury’s verdict cannot be overturned for insufficient evidence unless
there is no reasonable construction of the evidence that could sup-
port a guilty verdict.” United States v. Smith, 22 F.4th 1236, 1242
(11th Cir. 2022). The factfinder “is free to choose among alternative
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10 Opinion of the Court 23-11322

reasonable interpretations of the evidence, and the government’s
proof need not exclude every reasonable hypothesis of innocence.”
United States v. Tampas, 493 F.3d 1291, 1298 (11th Cir. 2007) (cita-
tion modified).
He argues that the evidence was insufficient for a conviction
under § 1035 because the government failed to show that the state-
ment was material to Medicare and failed to support a theory of
aiding and abetting the form submission. We address each argu-
ment in turn.
a. Materiality
Alexander argues that the alleged false statement of his
mother’s ownership stake cannot support a conviction under
§ 1035. He asserts that his mother’s ownership stake was not mate-
rial to Medicare because the form was not being used as an appli-
cation for enrollment. The false ownership information could not
have affected the decision to approve or deny enrollment but only
whether to approve or deny the new hours. The government ar-
gues in response that they need not prove that the decisionmaker—
here, Medicare—actually relied on the false statement, just that the
statement had the capability of influencing them. And accurate dis-
closure of ownership interests is important to Medicare in deciding
whether to establish or maintain a billing relationship with a DME
company like Silent Hill.
A false statement is material if it “has a natural tendency to
influence, or [is] capable of influencing, the decision of the deci-
sionmaking body to which it was addressed.” Kungys v. United
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23-11322 Opinion of the Court 11

States, 485 U.S. 759, 770, (1988) (quotation marks omitted); United
States v. Henderson, 893 F.3d 1338, 1346 (11th Cir. 2018). A state-
ment is material based on the determination of two questions:
“what statement was made?” and “what decision was the agency
trying to make?” United States v. Gaudin, 515 U.S. 506, 512 (1995).
The government need not “show that the decisionmaker actually
relied on the false statement.” Henderson, 893 F.3d at 1346 (citing
United States v. Clay, 832 F.3d 1259, 1309 (11th Cir. 2016) (“[T]he
test is not whether the agents were actually misled.”)). A false state-
ment can be material even “if the decision maker actually knew or
should have known that the statement was false.” Id. (quotation
marks omitted).
Section 1035 applies to false statements relating to health
care matters:
(a) Whoever, in any matter involving a health care
benefit program, knowingly and willfully–

...

(2) makes any materially false, fictitious, or fraudu-
lent statements or representations, or makes or uses
any materially false writing or document knowing the
same to contain any materially false, fictitious, or
fraudulent statement or entry,

in connection with the delivery of or payment for
health care benefits, items, or services, shall be fined
under this title or imprisoned not more than 5 years,
or both.
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12 Opinion of the Court 23-11322

The government presented sufficient evidence at trial to
support their position that the false statement was material to Med-
icare. Expert witness Steven Quindoza testified that Medicare en-
rollment was an ongoing conversation beyond the initial enroll-
ment form, and that the text of the CMS 855S form explicitly states
the importance of that ownership information. 2 Quindoza also ex-
plained that submission of false ownership information would lead
to enrollment termination. 3 According to his testimony, this risk of
termination is ongoing with every CMS 855S submission. There-
fore, even though the form was not used for enrollment, the false
ownership information was capable of influencing the deci-
sionmaker. This meets the standard of materiality. Henderson, 893
F.3d at 1347 (finding evidence that the false statement could have

2 The 855S form makes the significance of ownership information explicit, stat-

ing that to “obtain and retain their billing privileges,” DME companies are re-
quired to, among other things, “disclose any person having ownership, finan-
cial or control interest in the supplier.” The form also made clear that “delib-
erately furnishing false information” could expose someone to criminal penal-
ties under § 1035.
3 Quindoza testified that failure to disclose an owner could lead to several con-

sequences: “First, the enrollment status of that provider could be revoked,
which means they could no longer submit claims; secondly, for claims that
were already paid, Medicare can demand payment, repayment of such claims
or demand an over payment of such claims. And then lastly, Medicare can
consider referring that provider to a law enforcement agency for potential in-
vestigation and potential prosecution.”
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23-11322 Opinion of the Court 13

misled a medical professional sufficient to support a theory of ma-
teriality). Despite Alexander’s efforts, the jury was convinced by
the government’s argument of materiality.4
Drawing all inferences in the government’s favor, we find
that a reasonable construction of the evidence supports the jury’s
verdict.
b. Aiding and Abetting
Next, Alexander argues that the evidence was insufficient to
convict him under a theory of aiding and abetting. “To prevail un-
der a theory of aiding and abetting, the government must prove:
(1) the substantive offense was committed by someone; (2) the de-
fendant committed an act which contributed to and furthered the
offense; and (3) the defendant intended to aid in its commission.”
United States v. Margarita Garcia, 906 F.3d 1255, 1280 (11th Cir.
2018) (internal quotation marks omitted). “Aiding and abetting
need not be specifically alleged in the indictment; assuming the ev-
idence supports it, the accused can be convicted of aiding and abet-
ting so long as the jury is instructed on it.” United States v. Seabrooks,
839 F.3d 1326, 1333 (11th Cir. 2016) (citation modified). “[The] in-
tent requirement [is] satisfied when a person actively participates

4 Alexander’s argument that the false statement was not material because it

was not required by Medicare also fails. Liability under § 1035 does not depend
on whether a statement was required, but whether the defendant knowingly
and willfully submitted the false statement and that statement was material.
Here, § 1035 liability attaches even though the statement was voluntarily in-
serted in the CMS 855S form.
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14 Opinion of the Court 23-11322

in a criminal venture with full knowledge of the circumstances con-
stituting the charged offense.” Rosemond v. United States, 572 U.S.
65, 77 (2014). “The government can prove knowledge or intent
through circumstantial evidence.” United States v. Beaufils, 160 F.4th
1147, 1163 (11th Cir. 2025).
Alexander argues that the government failed to establish
that he had any knowledge of the criminal objective attributed to
Waxman. When Waxman testified, he did not recall the January
2019 form and only testified about the routine process of submit-
ting forms on behalf of Silent Hill. He did not testify to the nature,
preparation, or submission of either the form or the false state-
ment.
We disagree. The government presented specific evidence
at trial that meets the three-prong Margarita Garcia test. First, the
form was submitted by Silent Hill under the day-to-day supervision
of Waxman. Second, it was Alexander’s idea to use his mother as
the false owner on the original Medicare forms. Alexander ob-
tained and provided his mother’s fingerprints, Social Security num-
ber, personal information, and signature. This evidence shows that
Alexander contributed to and furthered the false statement submis-
sion. Third, Waxman testified that the January 2019 form was sub-
mitted by Silent Hill, and as a matter of course, Alexander would
have seen and consented to each of the CMS 855S forms before
submission. Waxman also testified that he never signed a docu-
ment on Alexander’s mother’s behalf without Alexander’s permis-
sion. Because this form includes her signature, it is reasonable to
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23-11322 Opinion of the Court 15

conclude that Alexander consented to its submission in the regular
course of business.
After a nine-day jury trial, the jury determined that Alexan-
der aided and abetted the signing and submission of the January
2019 form. We find that a reasonable construction of the evidence
meets the three-prong test in Margarita Garcia and supports the
jury’s verdict. Thus, we affirm the district court’s denial of the mo-
tion for a judgment of acquittal on both sufficiency of evidence
grounds.
V. Jury Instructions
Next, Alexander challenges whether the district court erred
in overruling his objection to the materiality jury instruction and
the deliberate ignorance jury instruction. We review de novo the
legal correctness of jury instructions, but we review the district
court’s phrasing for abuse of discretion. United States v. Prather, 205
F.3d 1265, 1270 (11th Cir. 2000).
We review jury instructions “to determine whether the in-
structions misstated the law or misled the jury to the prejudice of
the objecting party.” United States v. Gibson, 708 F.3d 1256, 1275
(11th Cir. 2013) (quotation marks omitted). We will not reverse a
conviction based on a jury instructions challenge “unless we are
left with a substantial and ineradicable doubt as to whether the jury
was properly guided in its deliberations.” Id. (quotation marks
omitted). When a party expressly accepts a jury instruction, “such
action constitutes invited error” and “serve[s] to waive [his] right
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16 Opinion of the Court 23-11322

to challenge the accepted instruction on appeal.” United States v.
Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005).
a. Materiality
First, Alexander challenges the materiality instruction given
to the jury. He argues that the error in instruction rendered his trial
“fundamentally unfair” because it permitted the jury to convict Al-
exander on an invalid theory of materiality.
To begin, we review the proposed and final jury instruc-
tions. At trial, Alexander and the government each proposed jury
instructions regarding the materiality element of § 1035. The gov-
ernment’s final version proposed:
A “material” fact is an important fact – not some un-
important or trivial detail – that has a natural ten-
dency to influence or is capable of influencing a deci-
sion of a department or agency in reaching a required
decision.

Alexander’s definition of materiality was identical, and included an
additional instruction describing the relevant decision in the case:
In this case, the alleged false statement relates to a
form 855S filed by Medicare provider applicants. To
be material as to such a form, the false statement
must have a natural tendency to influence or be capa-
ble of influencing the decision to approve or deny the
request to participate or enroll as a provider of ser-
vices or supplier under a Federal health care program.
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23-11322 Opinion of the Court 17

At the charge conference, Alexander’s counsel asked the
court to give the alternative instructions he submitted, arguing that
the court’s proposed instruction was “inconsistent with the evi-
dence.” The court considered the objection and denied it. And yet,
the court’s final version of the materiality instruction incorporated
Alexander’s submission almost exactly:
A “material” fact is an important fact – not some un-
important or trivial detail – that has a natural ten-
dency to influence or is capable of influencing a deci-
sion of a department or agency in reaching a required
decision.

In this case, the alleged false statement relates to a
form 855S filed by Medicare provider applicants. To
be material as to such a form, the false statement
must have a natural tendency to influence or be capa-
ble of influencing the decision to approve or deny the
request to participate or enroll as a provider of ser-
vices or supplier under a Federal health care program.

The one and only difference between Alexander’s proposed
instructions and the final court instructions is a line break splitting
the instruction into two paragraphs. The language and the sub-
stance of the instruction are identical.
Alexander proposed the very instruction that he now chal-
lenges on appeal. “This is a textbook case of invited error.” United
States v. Maradiaga, 987 F.3d 1315, 1322 (11th Cir. 2021). We there-
fore decline to review his challenge to the jury instruction on ma-
teriality.
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18 Opinion of the Court 23-11322

b. Deliberate Ignorance
Next, Alexander argues that the district court erred in grant-
ing the government’s request for a deliberate ignorance instruc-
tion.
In a footnote in his initial brief, Alexander adopts the sum-
mary of the arguments of his co-defendant Zusmer “to the extent
[he] . . . is similarly situated in regard to those claims of error.” 5
There is no other mention in Alexander’s initial brief regarding his
argument against the deliberate ignorance instruction. The first
time he makes the argument properly is in his reply brief, and so
he waives the argument altogether. 6 See Big Top Koolers, Inc. v. Cir-
cus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008) (“We decline

5 Zusmer’s objection to the jury instruction focused on the government’s ex-

tensive evidence of his actual knowledge and involvement in the conspiracy,
which was at odds with the deliberate ignorance instruction. But this does not
apply to Alexander, who claims the opposite, to have been uninvolved in any
of the filing or day-to-day business. Because Zusmer’s argument does not ap-
ply, the adoption fails.
6 Even if we did address it, the argument still fails. The deliberate ignorance

instructions used by the court were identical to the Eleventh Circuit Pattern
Instructions. The defense did not propose any alternative instructions. At the
charge conference, Alexander’s counsel objected to the use of deliberate igno-
rance instructions because there was “no evidence of [Alexander’s] conscious
avoidance.” The district court concluded that this issue would be “a question
of fact for the jury” and overruled Alexander’s objection. There is no evidence
that the district court misstated the law or misled the jury. See Gibson, 708 F.3d
at 1275. And there is significant evidence put forth at trial to support a deliber-
ate ignorance theory—that Waxman handled the day-to-day operations of the
business and gave Alexander periodic updates and profit disbursements.
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23-11322 Opinion of the Court 19

to address an argument advanced by an appellant for the first time
in a reply brief.”).
Accordingly, we affirm the district court’s jury instructions.
VI. Forfeiture
Alexander challenges the forfeiture order issued by the dis-
trict court. We review the factual findings of a forfeiture judgment
for clear error and questions of law de novo. United States v. Es-
formes, 60 F.4th 621, 631–32 (11th Cir. 2023). District courts shall
order forfeiture of property “that constitutes or is derived, directly
or indirectly, from gross proceeds traceable to the commission of”
a federal healthcare offense. 18 U.S.C. § 982 (a)(7). Courts must
make forfeiture-related findings under § 982(a) by a preponderance
of the evidence. United States v. Hasson, 333 F.3d 1264, 1278–79
(11th Cir. 2003).
Under the Federal Rule of Criminal Procedure 32.2, courts
must follow three steps in criminal forfeiture proceedings. First, a
judgment of forfeiture may not be entered unless the defendant re-
ceives notice of forfeiture in the indictment or information; second,
a court must determine the amount of money a defendant will be
ordered to pay (if a money judgment will be entered) as soon as
practical after a guilty verdict; and third, a court must promptly en-
ter a preliminary order of forfeiture setting forth the amount of any
money judgment, which it must do before sentencing unless doing
so is impractical. United States v. Farias, 836 F.3d 1315, 1329 (11th
Cir. 2016). “The failure to enter a preliminary [forfeiture] order
does not bar a judge from ordering forfeiture at sentencing subject
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20 Opinion of the Court 23-11322

to harmless-error principles on appellate review.” McIntosh v.
United States, 601 U.S. 330, 333 (2024).
First, Alexander argues that his rights were violated when
the district court permitted the government to move forward with
a new forfeiture claim that was introduced post-sentencing. Before
we dive into Alexander’s argument, we will detail the timeline of
the proceedings in the district court.
The government first moved for a preliminary order of for-
feiture on April 19, 2023, the day before the sentencing hearing.
The government calculated that the total value of gross proceeds
obtained by Alexander traceable to his offense of conviction was
$125,000. At sentencing, Alexander’s counsel asked to postpone the
restitution and forfeiture determinations until after sentencing be-
cause the government’s motion violated the timing requirement of
Federal Rule of Criminal Procedure 32.2(b)(2)(B). Additionally, Al-
exander’s counsel took issue with the government’s lack of evi-
dence supporting the $125,000 calculation. The district court post-
poned the issue of forfeiture and restitution for later resolution to
give the defense a chance to respond to the government’s motion.
On May 3, 2023, Alexander responded in opposition to the
government’s motion. Alexander “contest[ed] the government’s
forfeiture motion on multiple grounds, including factual, proce-
dural, and estoppel grounds.” Alexander requested that the court
deny the forfeiture motion as untimely.
Eventually, the forfeiture and restitution hearing was held
on June 27, 2023. The government proposed a forfeiture order of
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23-11322 Opinion of the Court 21

$125,000, based on the record at trial and Waxman’s testimony.
Waxman testified that when Silent Hill shut down, he withdrew
most of the money from the business bank account and split it be-
tween himself and Alexander. The bank account reflected two
withdrawals for a total of $345,000, making $125,000 a conservative
estimate of what Alexander would have received. Alexander’s
counsel objected to this estimation, arguing that “the Government
cannot after sentencing come up with a new basis for asserting for-
feiture . . . than it claimed in the pre-sentencing motion.” Alexan-
der repeated his initial argument that the government’s claim failed
to properly trace the money back to his bank accounts. At the con-
clusion of the arguments, the district court entered a forfeiture or-
der for $125,000.
The district court erred by failing to enter a preliminary or-
der of forfeiture in advance of sentencing. Farias, 836 F.3d at 1330.
But “[n]oncompliance with Rule 32.2(b)(2)(B)’s timing require-
ment is a procedural error subject to harmlessness review.” McIn-
tosh, 601 U.S. at 344. Here, the procedural error was harmless. The
record establishes that Alexander had fair notice prior to the forfei-
ture hearing that the government would seek forfeiture. Alexander
was informed at the time of the indictment, prior to sentencing, at
sentencing, and prior to the forfeiture hearing. Not only did Alex-
ander have fair notice, but the district court postponed the hearing
for the sole purpose of giving Alexander time to properly respond.
Alexander explicitly agreed with this approach at the sentencing
hearing and proceeded to file a response less than a month later.
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22 Opinion of the Court 23-11322

Additionally, Alexander had specific notice of the forfeiture
amount. Waxman testified at trial that he made two withdrawals
amounting to $345,000, split between himself and Alexander. The
final amount of $125,000 was the same amount the government
calculated in their first motion for forfeiture. And Alexander was
given a full opportunity to contest this amount at the hearing. He
has failed to show “prejudice sufficient to void the forfeiture or-
der.” McIntosh, 601 U.S. at 345. We can confidently say that the pro-
cedural error was harmless.
Second, Alexander argues that the government’s theory is
speculative and does not meet the burden of traceability under 18
U.S.C. § 982 (a)(7). We are unpersuaded. The trial judge explained
at the forfeiture hearing that he “heard the testimony of Mr. Wax-
man” and is “satisfied that the evidence supports the fact that those
amounts were fairly traceable.” This meets the preponderance of
the evidence standard. See Hasson, 333 F.3d at 1278–79.
Alexander had ample notice of the type and scope of forfei-
ture sought, and the government has shown by a preponderance
of the evidence that the amount is traceable to the offense. Accord-
ingly, we affirm.
VII. Restitution
Lastly, Alexander challenges the restitution order. He argues
that the district court erred when it entered a restitution order
against him because the government failed to show that the false
statement caused actual loss. The government responds that his
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23-11322 Opinion of the Court 23

false statement offense caused losses on all claims submitted by Si-
lent Hill after the January 2019 form. Like forfeiture, we review the
restitution award’s “factual findings for clear error and questions of
law de novo.” Esformes, 60 F.4th at 631–32.
The Mandatory Victims Restitution Act (MVRA) requires
district courts to order defendants to pay restitution to victims of
certain offenses, “including any offense committed by fraud or de-
ceit.” 18 U.S.C. § 3663A. The Act defines a victim as “a person di-
rectly and proximately harmed as a result of the commission of”
such an offense. 18 U.S.C. § 3663A(a)(2). It directs district courts to
resolve any disputes over the proper amount of restitution by a
preponderance of the evidence. 18 U.S.C. § 3664 (e).
“The purpose of restitution is not to provide a windfall for
crime victims but rather to ensure that victims, to the greatest ex-
tent possible, are made whole for their losses.” United States v. Mar-
tin, 803 F.3d 581, 594 (11th Cir. 2015) (citation modified). For that
reason, “[r]estitution is not designed to punish the defendant.” Id.
at 595. To accomplish restitution’s purpose, a court must base the
amount of restitution awarded to the victim on the amount of loss
that the defendant’s conduct “actually caused.” United States v. Huff,
609 F.3d 1240, 1247 (11th Cir. 2010) (citation modified). “That
means that, in a restitution order, the court must account for any
value that a defendant’s scheme bestowed on the victim.” United
States v. Young, 108 F.4th 1307, 1319–20 (11th Cir. 2024). Under the
MVRA, sentencing courts must order restitution for a victim’s “ac-
tual loss directly and proximately caused by the defendant’s offense
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24 Opinion of the Court 23-11322

of conviction.” United States v. Collins, 854 F.3d 1324, 1336 (11th Cir.
2017) (citation modified).
Recently, we've said in relation to restitution for a scheme
to defraud the Federal Employee's Compensation Act healthcare
program:
As we've noted, in fraud cases, a conviction inher-
ently means that the paying victim experienced at
least some loss. So if the defendant is convicted, that
means the government has already shown loss. For
that reason, it makes sense for the restitution amount
to initially include the entire amount the victim enti-
ties paid related to the fraudulent scheme, and then
for the defendant to be able to offset that amount by
the value of any goods or services she can prove were
medically necessary.

Young, 108 F.4th at 1322 (vacating a restitution award where the
record did not show whether the calculated loss was due to medi-
cally necessary prescriptions).
Here, the district court ordered Alexander to pay
$315,704.52 in restitution—the amount reflecting payments made
by Medicare to Silent Hill for claims submitted after the January
2019 form. We review this factual finding for clear error. See United
States v. Robertson, 493 F.3d 1322, 1334 (11th Cir. 2007). Alexander
does not dispute the amount of restitution owed, but that restitu-
tion is owed at all. He argues that the evidence at trial does not
show that the January 2019 form was ever processed by Medicare,
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23-11322 Opinion of the Court 25

much less relied upon. And without evidence of actual reliance, he
argues that restitution is unwarranted.
We agree. Restitution is not simply used as punishment, and
as such, there needs to be a showing of specific losses that the vic-
tim would not have otherwise incurred. For example, in Young, a
doctor challenged a restitution award after he was convicted of par-
ticipating in a kickback scheme. 108 F.4th at 1323. We determined
that it was not enough that he participated in the general fraud
scheme; the government had to show by a preponderance of the
evidence that each kickback he received was fraudulent. Id.
The government suggests that because the jury found the
false statement to be material to Medicare’s decision to continue
Silent Hill’s enrollment, every service billed after the false state-
ment was submitted is a target of the restitution award. Essentially,
that the false statement caused Medicare under false pretenses to
pay money it would not otherwise have. The district court relied
in part on Collins in calculating the restitution award. But the de-
fendant in Collins was convicted of a conspiracy, 854 F.3d at 1329,
unlike here, where Alexander was acquitted of the larger conspir-
acy. See Hughey v. United States, 495 U.S. 411, 418 (1990) (holding
that restitution orders should not expand beyond the scope of the
convicted offense). And as the government conceded at the restitu-
tion hearing, there is no Eleventh Circuit case that addresses resti-
tution for a § 1035 conviction alone.
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26 Opinion of the Court 23-11322

In the absence of a conspiracy conviction, we must instead
determine what actual losses Medicare suffered because of the sin-
gular false statement made in January 2019. “Our deference to the
district court is not unlimited, and we will hold a finding of fact
clearly erroneous if the record lacks substantial evidence to support
it.” Robertson, 493 F.3d at 1335 (citation modified). Here, there is
insufficient evidence to support the district court’s factual finding.7
Even accepting Young's presumption that a fraud conviction
“inherently means that the paying victim experienced at least some
loss,” the record does not show that the government specifically
relied on Alexander’s false statement. 108 F.4th at 1322. Prior to the
restitution hearing the parties submitted joint stipulations, two of
which are relevant here. First, that “the government has not pro-
duced to date a letter of receipt or a letter of processing by the Med-
icare contractor for the January 2019 855S form for Silent Hill.”8

7 We pause to note that the government’s burden for restitution differs from

that of the underlying § 1035 conviction. To be convicted of making a false
statement, the government need not prove that the statement was ever relied
upon, but just that it was capable of influencing the decisionmaker. See Hen-
derson, 893 F.3d at 1346. The standard for restitution is different. Here, the false
statement must have actually and proximately caused the loss. At the restitu-
tion hearing, the district court appears to confuse these two standards. The
court treated Alexander’s reliance argument as one “the jury [already] re-
jected.” But the jury was not asked to determine reliance at trial—they were
asked only whether the false statement was capable of influence. The evidence
to support a § 1035 conviction is not necessarily sufficient to support an order
of restitution.
8 Alexander concedes that the form was eventually found in Medicare’s files

and presented at litigation. But reception of the document alone does not
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23-11322 Opinion of the Court 27

Second, that “the government did not offer evidence at trial as to
when the referenced changed enrollment information was re-
viewed by the Medicare contractor.” Instead, the government ar-
gued that Medicare likely would not have allowed Silent Hill to re-
tain its billing privileges and may have even reversed past claims.
But the chance of reliance is not equivalent to reliance itself.
Despite this evidentiary shortcoming, the district court was
satisfied that because Alexander was convicted of the submitting a
false statement, “the natural consequence of” that conviction was
that Silent Hill obtained payments from Medicare. We disagree.
We find that there is insufficient evidence to support this finding
because nothing in the record suggests that the Medicare provider
ever reviewed or acted on the January 2019 form. See United States
v. Stein, 846 F.3d 1135, 1156 (11th Cir. 2017) (holding that the gov-
ernment must establish by a preponderance of the evidence that
the victims relied on the fraudulent information).9 Without any
causal link between the January 2019 form and the later claims, the
government has failed to show the amount of loss that Alexander’s
conduct actually caused. Thus, the district court’s factual finding is
clearly erroneous.
Accordingly, we vacate the restitution award.

prove reliance. And speculation that Medicare might have relied upon the doc-
ument is not enough to meet the government’s burden.
9 The district court also failed to account for any value that the submitted

claims may have bestowed upon Medicare, as required. Young, 108 F.4th at
1319–20.
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28 Opinion of the Court 23-11322

VIII. Conclusion
We affirm the judgment of the district court, but we vacate
the restitution order and remand for proceedings consistent with
this opinion.
AFFIRMED IN PART, AND VACATED IN PART AND
REMANDED.