By Courtney Dunn, of Segal McCambridge
Former NBA point guard William Bynum’s scheme to defraud his healthcare benefits was found to be an “ally-oops” by a jury of his peers. As an ex-player, Bynum was covered under the NBA’s Health and Welfare Benefit Plan, which, amongst other benefits, reimbursed participants for their otherwise unreimbursed healthcare costs. Once received by the participant, those reimbursements were not considered taxable income.
The Playbook
When former NBA player Terrence Williams contacted Bynum with a loophole to get the most out of their benefits, Bynam saw it as a slam dunk. After some back and forth during which Williams advised Bynum that he would be taxed and have to pay a $40,000 fee to Williams, Williams provided Bynum with twenty pages of fake invoices for services Bynum purportedly received at the Advanced Chiropractic & Rehab Center. It is undisputed that, while this was one of Bynum’s treatment providers, he did not undergo the services included within those invoices. Upon receiving the phony invoices from Williams, Bynum submitted his claim to be reimbursed for $200,000. Williams personally advised Bynum that he could expect to receive $182,224, which he did, and from which Bynum paid Williams $30,000.
While the facts appear to be pretty cut and dry, Bynum insists that he thought Williams was providing legitimate services, that he barely looked at the 20 pages of invoices, and all in all, that he had no idea this was all a scheme. The Court was not convinced.
The Foul
In 2021, Bynum was charged with conspiracy to commit healthcare fraud and wire fraud violation of 18 U.S.C. §§ 1343, 1347, 1349 (“Count 1”) and a separate conspiracy to make false statements relating to health care matters in violation of 18 U.S.C. § 371, 1035 (“Count 2”). Bynum and Williams[1] were not the sole players in this foul play. At least a dozen former NBA players and some healthcare providers were charged in connection with this scheme. Bynum was ultimately tried with co-conspirator Ronald Glen Davis (better known as Glen “Big Baby” Davis).[2]
Defendants objected to the jury being charged on conscious avoidance. In other words, Bynum did not want the jury to determine whether he consciously avoided knowing that he joined a conspiracy which had illegal intentions. While the Court overruled the objection, it did edit the draft charge to specify that, although the jury could consider whether Bynum consciously avoided knowing the goal of the charged conspiracies, it could not use the conscious avoidance theory to decide that he had knowingly joined either of the charged conspiracies.
On November 15, 2023, after a two-week jury trial, the jury acquitted Bynum on Count 1 and convicted him on Count 2. Bynum moved for acquittal on Count 2 or a new trial on the grounds that the Court’s conscious avoidance jury instructions were erroneous. He posited that no rational factfinder could have concluded that he consciously avoided knowing that the conspiracy he joined had unlawful intentions.
For Bynum’s arguments to prevail, he needed to prove that the jury instructions were read in isolation. This was not the case. In fact, the Court first instructed the jury on the substantive charges brought against his co-conspirator (wire fraud and healthcare fraud), and then instructed the jury on Counts 1 and 2, which were brought against both Defendants. During the initial instructions, the Court duly instructed the jury what to consider when determining whether Defendants acted “knowingly” and “intentionally.” Then, with respect to Count 1, the Court directed the jury to apply those same instructions: to decide whether Bynum “knowingly” and “willfully” joined the conspiracy, the goal of which was to commit wire fraud and healthcare fraud. Before determining that issue, the jury had to determine whether a conspiracy (consisting of both an agreement and an illegal goal) existed at all.
Regarding Bynum’s position that the instructions related to conscious avoidance were erroneous, the jury was told that, for Count 1, if it found that Bynum deliberately and consciously avoided learning the illegal goals of the conspiracy, then it could find that he did act knowingly. However, the jury could only apply the conscious avoidance theory in deciding whether Bynum knew the goal of the conspiracy, not in deciding whether he knowingly and willfully joined the conspiracy. For Count 2, the jury was again instructed to provide those same “knowing” and “intentionally” considerations to determine whether Bynum knowingly and intentionally became a member of the conspiracy. The Court also repeated that the jury could find that Bynum acted knowingly if he “deliberately and consciously avoided learning the illegal goals of the conspiracy.”
In other words, the jury instructions clearly expressed that Bynum would have had to voluntarily join the conspiracy and then, after that determination, it could go on to use a conscious avoidance theory to find that he knew the illegal goal of the conspiracy. In its decision, the Second Department cited case precedent confirming that its instructions on both counts, from the two-prong determination of conspiracy to the conscious avoidance theory, were legally correct and not misleading.
The Final Score
Federal Rule of Criminal Procedure 29(a) states that a court must “enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”
Based upon Bynum’s position that he was in the dark when it came to the details of the conspiracy and its intentions, his argument against the conscious avoidance theory was a foul from the get-go. As the Second Department acknowledged, “[a] conscious avoidance instruction is warranted if (1) the defendant asserts ‘the lack of some specific aspect of knowledge required for conviction’ and (2) if the evidence would allow a rational juror to conclude that the defendant ‘was aware of a high probability of the criminal objective and consciously avoided confirming the fact.’” United State v. Lewis, 545 F. App’x 9, 11 (2d Cir. 2013).
While Bynum admits that he received fake invoices from Williams and then submitted those for reimbursement, his account of whether he knew that the claim he submitted was based on fake invoices is lackluster, even when deciding whether he went the “ignorance is bliss” route. Based on the amount of evidence submitted at trial against Bynum’s defense, a reasonable juror could clearly conclude that Bynum either knew or consciously avoided knowing that the reimbursement he received stemmed from false statements. Put simply, there was ample evidence to determine that Bynum had (or should have had) a reasonable suspicion that something fishy was going on, but chose not to confirm it.
[1] Williams was reportedly sentenced to 10 years in prison and ordered to pay $10 million in restitution after pleading guilty to his involvement with this scheme.
[2] https://www.nba.com/news/18-ex-nba-players-charged-in-4m-health-care-fraud-scheme
