Aiding-and-Abetting Liability under the Anti-Kickback Statute for Pharmaceutical Marketers

Introduction

United States v. Cockerell is a Fifth Circuit decision handed down on June 5, 2025, affirming the conviction of Quintan Cockerell for receiving and paying unlawful kickbacks in violation of the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), conspiracy (18 U.S.C. § 371), and money-laundering (18 U.S.C. § 1957). Cockerell marketed compounded topical creams to TRICARE-covered patients, funneling nearly $2.5 million in “commissions” and “overrides” through his then-wife. At trial, the Government showed that Cockerell and his sub-representatives induced physicians with lavish trips, prepaid prescription pads, and investment opportunities to prescribe high-reimbursement creams. Cockerell challenged the sufficiency of the evidence, alleged prosecutorial misstatements in closing, and attacked a nearly $60 million restitution order. The Fifth Circuit rejected each challenge and affirmed.

Summary of the Judgment

The Court of Appeals held:

• Sufficiency of Evidence. Viewed in the light most favorable to the Government, a rational jury could find beyond a reasonable doubt that Cockerell knowingly and willfully participated in a scheme to receive kickbacks in exchange for inducing prescriptions under TRICARE.
• Aiding-and-Abetting. Even without direct dealings between Cockerell and prescribing physicians, he was liable as an aider and abettor because he recruited, trained, and oversaw sub-representatives who engaged in improper inducements.
• Prosecutorial Remarks. None of the challenged statements during closing arguments or rebuttal—about marketing versus kickbacks or the bona fide employee exception—constituted reversible error.
• Restitution. Under the Mandatory Victims Restitution Act, the district court properly estimated total loss at $59,879,871 and shifted the burden to Cockerell to prove any offset, given the pervasive nature of the fraud.

Analysis

Precedents Cited

• United States v. Shoemaker, 746 F.3d 614 (5th Cir. 2014) – Distinguishes permissible advertising payments from unlawful kickbacks intended to induce referrals.
• United States v. Miles, 360 F.3d 472 (5th Cir. 2004) – Holds that occasional snacks or purely public ads do not show impermissible inducement.
• United States v. Marchetti, 96 F.4th 818 (5th Cir. 2024) – Clarifies that intent to “improperly influence” healthcare decisions is required, not mere compensation for promotional activity.
• United States v. Shah, 95 F.4th 328 (5th Cir. 2024) – Emphasizes de novo review of sufficiency and high deference to jury verdicts.
• United States v. Scott, 892 F.3d 791 (5th Cir. 2018) – Sets out elements for aiding and abetting: association, purposeful participation, and desire for success.
• United States v. St. Junius, 739 F.3d 193 (5th Cir. 2013) – Supports liability where a defendant directs illicit payments through intermediaries.
• United States v. King, 93 F.4th 845 (5th Cir. 2024) – Permits restitution based on total fraudulent billings absent defendant’s proof of legitimate services.
• United States v. Mazkouri, 945 F.3d 293 (5th Cir. 2019) – When fraud is pervasive, court may estimate loss and shift offset burden to defendant.

Legal Reasoning

The Fifth Circuit applied settled principles for each issue:

1. Sufficiency Review. Under de novo review, the court viewed testimonial and documentary evidence—text messages, accounting trails, insider testimony—showing Cockerell’s recruitment of physicians through bribes and investment schemes. The jury could rationally credit that evidence to prove intent to influence prescriptions.
2. Aiding and Abetting. Cockerell’s scheme used a shell corporation (QSpine) and sub-representatives. Even absent a direct physician contact by Cockerell, his orchestration of payments and overrides met the three Scott factors (association, purposeful participation, and desire for success).
3. Prosecutorial Remarks. The court found the lone preserved objection (on the bona fide employee exception) harmless given accurate jury instructions and the strength of the Government’s case. Four unpreserved objections failed plain-error review due to minimal prejudice, repeated jury cautions, and overwhelming evidence.
4. Restitution. Under 18 U.S.C. § 3663A, once the Government proved nearly $60 million in federal insurer payments tied to the conspiracy, the district court reasonably estimated loss and shifted the burden to Cockerell to offset. His failure to present any evidence of legitimate services left the full amount intact.

Impact

United States v. Cockerell clarifies and reinforces several key points in healthcare-fraud jurisprudence:

• Marketers who funnel inducements through intermediaries can be held directly liable as aiders and abettors under the Anti-Kickback Statute, even absent direct physician contact.
• The “bona fide employee” safe harbor does not immunize marketing activity that is intended to improperly influence clinical decision-making.
• Restitution under the MVRA may be based on total insurer payments in a pervasive fraud; defendants bear the burden to prove any legitimate services to offset.
• Prosecutors need not fear reversible error from isolated misstatements about marketing versus kickbacks when jury instructions are clear and the evidence is strong.

Complex Concepts Simplified

• Anti-Kickback Statute: A federal law that makes it a crime to give or receive anything of value to induce referrals or prescriptions covered by government health programs.
• Aiding and Abetting: A legal theory holding someone liable for a crime they help facilitate, even if they do not commit every element themselves.
• Bona Fide Employee Exception: A safe harbor under the Anti-Kickback Statute protecting true employees receiving regular pay—not commission or kickbacks tied to referrals.
• Restitution under MVRA: Victims (here, federal insurers) must be made whole for losses caused by certain crimes; courts can estimate loss if separating fraud from legitimate activity is impractical.

Conclusion

United States v. Cockerell stands as a landmark clarification of how the Anti-Kickback Statute applies to sophisticated marketing schemes in the pharmaceutical industry. By affirming liability for those who orchestrate indirect kickback arrangements and by approving robust restitution based on total fraudulent billings, the Fifth Circuit ensures that marketers cannot evade accountability through intermediaries or shell entities. Future defendants and practitioners will look to Cockerell for clear guidance on the boundaries of lawful remuneration in healthcare marketing, the reach of aiding-and-abetting liability, and the mechanics of restitution in pervasive fraud schemes.