Conspiracy Acquittal Does Not Undermine Anti‑Kickback Substantive Convictions; Supervisory Role Bars §4C1.1 Zero‑Point Offender Relief

Case: United States v. David Byron Copeland (11th Cir. Jan. 9, 2026) (per curiam) (not for publication)
Statutes: 42 U.S.C. § 1320a-7b(b)(1), (b)(2), (h); 18 U.S.C. § 2; 18 U.S.C. § 371
Guidelines: U.S.S.G. §§ 2B4.1, 3B1.1(b), 3E1.1(a), 4C1.1

I. Introduction

This appeal arises from an Anti‑Kickback Statute prosecution tied to TRICARE reimbursements for compounded prescription creams dispensed by Florida Pharmacy Solutions, Inc. (“FPS”). David Byron Copeland, an FPS co‑owner and officer, was tried on one conspiracy count and five substantive kickback counts—two for soliciting/receiving kickbacks and three for offering/paying kickbacks. The jury acquitted Copeland of conspiracy under 18 U.S.C. § 371 but convicted him on all five substantive counts under 42 U.S.C. § 1320a-7b(b) and aiding-and-abetting 18 U.S.C. § 2.

On appeal, Copeland’s core theory was that the conspiracy acquittal necessarily negated the mens rea for the substantive offenses, making the verdicts inconsistent and the evidence insufficient. He also challenged sentencing rulings: (1) a three-level aggravating-role enhancement as a manager/supervisor under U.S.S.G. § 3B1.1(b), (2) denial of a “zero‑point offender” reduction under U.S.S.G. § 4C1.1, and (3) denial of acceptance-of-responsibility under U.S.S.G. § 3E1.1(a).

II. Summary of the Opinion

The Eleventh Circuit affirmed in full. It held that:

Copeland could not use his conspiracy acquittal to attack the sufficiency of evidence supporting the substantive kickback convictions; sufficiency review is count-by-count, and inconsistent verdicts do not warrant reversal.
The government presented sufficient evidence of “knowing and willful” conduct for Anti‑Kickback Statute purposes, including compliance training and evidence of authorizing/participating in inducements (meals, trips, events), plus denials to investigators supporting consciousness of guilt.
The district court did not clearly err in applying the § 3B1.1(b) manager/supervisor enhancement; Copeland supervised a sales team and the scheme involved at least five participants or was otherwise extensive.
Because the aggravating-role adjustment applied, Copeland was ineligible for § 4C1.1 zero‑point offender relief (which requires, among other things, no § 3B1.1 adjustment).
Denial of acceptance-of-responsibility under § 3E1.1(a) was proper where Copeland went to trial, contested guilt, and (per the court) still did not admit guilt or express remorse.

III. Analysis

A. Precedents Cited

1) Standards of review and preservation

United States v. Gatlin, 90 F.4th 1050 (11th Cir. 2024), cert. denied sub nom., 145 S. Ct. 1065 (2025), quoting United States v. Taylor, 480 F.3d 1025 (11th Cir. 2007): supplied the ordinary de novo sufficiency framework (view evidence in the light most favorable to the government).
United States v. Baston, 818 F.3d 651 (11th Cir. 2016): supported plain-error review when a defendant raises a different sufficiency theory on appeal than in the Rule 29 motion.
United States v. Greer, 440 F.3d 1267 (11th Cir. 2006), and United States v. Thompson, 610 F.3d 1335 (11th Cir. 2010): provided the even more demanding “manifest miscarriage of justice” standard for counts with no Rule 29 motion at all.
Rosales-Mireles v. United States, 585 U.S. 129 (2018), United States v. Hawkins, 934 F.3d 1251 (11th Cir. 2019), and Puckett v. United States, 556 U.S. 129 (2009): set out and emphasized the difficulty of meeting the four-prong plain-error test (error, plainness, substantial rights, and discretionary fairness/integrity prong).

2) Inconsistent verdicts vs. insufficiency

United States v. Powell, 469 U.S. 57 (1984): the anchor precedent. The panel applied Powell’s rule that sufficiency review on one count is independent of an acquittal on another; inconsistent verdicts do not themselves demonstrate insufficient evidence.
Practical consequence in this case: an acquittal on conspiracy cannot be leveraged into reversal of substantive convictions.
United States v. Veal, 153 F.3d 1233 (11th Cir. 1998): reinforced Powell in the Eleventh Circuit and cautioned against conflating inconsistent verdicts with evidentiary insufficiency—precisely the mistake the panel found in Copeland’s argument.

3) Elements and mens rea under the Anti‑Kickback Statute

United States v. Nerey, 877 F.3d 956 (11th Cir. 2017): provided the elements for receiving kickbacks under 42 U.S.C. § 1320a-7b(b)(1), including “knowingly and willfully.”
United States v. Vernon, 723 F.3d 1234 (11th Cir. 2013): provided the elements for paying kickbacks under § 1320a-7b(b)(2) and the circuit’s articulation of “willfully” in this context (as used by Nerey).
United States v. Starks, 157 F.3d 833 (11th Cir. 1998): Copeland cited Starks to demand proof that he knew his conduct specifically violated the Anti‑Kickback Statute. The panel rejected that framing by emphasizing Starks’s own limiting language—particularly the recognition that kickbacks for medical referrals are not conduct one would expect to be lawful, and that knowledge of unlawfulness can be inferred even if the defendant did not know the precise statute.
United States v. Sosa, 777 F.3d 1279 (11th Cir. 2015): cited in the sufficiency discussion to illustrate that evidence can support a finding of knowing participation in unlawful conduct; also cited later on “otherwise extensive” activity for role adjustments.
United States v. Young, 108 F.4th 1307 (11th Cir. 2024), cert. denied, 145 S. Ct. 1959 (2025), and Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003): invoked for the broader point that circumstantial evidence can be sufficient—useful in Anti‑Kickback cases where intent is often inferred from conduct, training, concealment, and communications.

4) Sentencing: role, deference, and acceptance of responsibility

United States v. Boyd, 291 F.3d 1274 (11th Cir. 2002), and United States v. Arguedas, 86 F.3d 1054 (11th Cir. 1996): confirmed clear-error review for Guidelines adjustments at issue (role; acceptance).
United States v. Rodriguez De Varon, 175 F.3d 930 (11th Cir. 1999): emphasized deference to district courts on role determinations as essentially factual; reversal is rare absent record deficiency or legal misapplication.
United States v. Ramirez, 426 F.3d 1344 (11th Cir. 2005): provided the interpretive point that the § 3B1.1 factors are non-exhaustive considerations and not all must be present.
United States v. Garrison, 133 F.3d 831 (11th Cir. 1998): supported finding “manager or supervisor” where the defendant directed others and reimbursed participants—analogous to Copeland’s supervision of sales reps and oversight of inducements.
United States v. Grady, 18 F.4th 1275 (11th Cir. 2021): controlled the acceptance-of-responsibility analysis, particularly the principle that going to trial and denying essential factual elements ordinarily forecloses § 3E1.1, with acceptance assessed primarily through pre-trial statements and conduct.

B. Legal Reasoning

1) The conspiracy acquittal did not “erase” mens rea for substantive counts

Copeland’s sufficiency challenge hinged on a syllogism: acquittal on conspiracy implied the jury found no requisite intent; therefore, the substantive convictions must be unsupported. The panel rejected this as contrary to United States v. Powell and United States v. Veal. Under Powell, the appellate court does not attempt to reconcile verdicts across counts; it asks whether evidence supports each conviction standing alone. The opinion treats the conspiracy acquittal as legally irrelevant to sufficiency for the substantive counts.

The panel also emphasized preservation doctrines: because Copeland did not raise his current mens rea sufficiency theory in his Rule 29 motion for Counts II and III, review was for plain error under United States v. Baston. And because he did not move for acquittal on Counts IV–VI, he had to show a “manifest miscarriage of justice” under United States v. Greer and United States v. Thompson. These standards materially increased Copeland’s appellate burden and made his reliance on verdict “inconsistency” even less viable.

2) “Knowingly and willfully” under the Anti‑Kickback Statute: knowledge of illegality, not of the statute’s name

The opinion reiterates the Eleventh Circuit’s AKS framework from United States v. Nerey and United States v. Vernon, then addresses Copeland’s argument that the government had to prove he knew his conduct specifically violated the Anti‑Kickback Statute. The panel points to 42 U.S.C. § 1320a-7b(h) (no “specific intent to violate this section” requirement) and relies on United States v. Starks to explain why general knowledge of unlawfulness can be inferred: kickbacks for medical referrals are “hardly the sort of activity a person might expect to be legal.”

Applying that principle, the panel highlighted evidence from which a jury could infer willfulness:

Copeland’s contract required compliance with the Anti‑Kickback Statute.
He completed compliance training that specifically covered the Anti‑Kickback Statute and passed testing.
Trial testimony linked Copeland to authorizing/knowing of inducements (meals, trips, the “wine and paint” event) intended to influence prescribing/referrals for TRICARE beneficiaries.
Copeland’s statements to the DOD agent—initial denial of kickbacks and later minimization—supported an inference of consciousness of wrongdoing.

The court thus found ample basis for the “bad purpose” concept of willfulness as stated in Nerey/Vernon: conduct undertaken purposely with intent to do something the law forbids, even without proof of knowledge of the precise statutory citation.

3) Sentencing: role enhancement, zero‑point offender, and acceptance

The panel treated the sentencing issues as largely factual and reviewed them for clear error, emphasizing deference under United States v. Rodriguez De Varon.

Aggravating role (§ 3B1.1(b)). The enhancement required that Copeland be a manager/supervisor and that the activity involve five or more participants or be otherwise extensive. Using the § 3B1.1 commentary factors (and United States v. Ramirez to note they are non-mandatory), the panel found “ample evidence” that Copeland supervised a sales team (including Gordon, Jackson, and Davis) while also serving as co‑owner/officer. For the size/extensiveness element, the court referenced multiple participants and cited United States v. Sosa for the proposition that a scheme can be “otherwise extensive” even if some “outsiders” are unknowing.

Zero‑point offender (§ 4C1.1). The opinion applies the guideline text straightforwardly: § 4C1.1(a)(10) requires no § 3B1.1 adjustment. Because the role enhancement stood, zero‑point offender relief was categorically unavailable.

Acceptance of responsibility (§ 3E1.1(a)). Relying on United States v. Grady and the guideline commentary, the panel affirmed denial because Copeland went to trial, contested guilt, and (as the court noted) still did not admit guilt or express remorse. The analysis reflects the guideline’s ordinary rule: acceptance is primarily shown through pretrial statements and conduct, and is generally inconsistent with forcing the government to prove the “essential factual elements” at trial.

C. Impact

Verdict architecture in multi-count prosecutions: The decision reinforces that defendants cannot convert a conspiracy acquittal into a backdoor insufficiency argument against substantive convictions. For trial strategy, it underscores that inconsistent verdicts are common and typically unavailing on appeal under United States v. Powell.
Anti‑Kickback mens rea proof: The opinion highlights the prosecution’s most durable evidence on “willfulness” in AKS cases: compliance training, contractual compliance obligations, authorization/awareness of inducements, and post‑hoc denials or minimization to investigators.
Guidelines practice: The sentencing portion shows how a managerial-role finding can have cascading effects—both increasing offense level under § 3B1.1 and foreclosing § 4C1.1. It also illustrates the continued difficulty of obtaining § 3E1.1 after a full trial absent rare “issue preservation” trials that do not contest factual guilt.
Appellate posture matters: The court’s reliance on plain-error and “manifest miscarriage of justice” standards signals the high cost of not preserving sufficiency arguments through precise Rule 29 motions on each count and theory.

IV. Complex Concepts Simplified

“Inconsistent verdicts”: A jury may acquit on one count and convict on another even if the results seem logically inconsistent. Under United States v. Powell, appellate courts generally do not reverse convictions just because the verdicts do not match neatly; they ask only whether there was enough evidence for each conviction.
“Sufficiency of the evidence”: Whether, viewing the trial evidence in the government’s favor, a reasonable jury could find guilt beyond a reasonable doubt. It is assessed count-by-count.
“Plain error” vs. “manifest miscarriage of justice”: Both are tough appellate standards used when a defendant did not properly preserve an argument in the trial court. “Manifest miscarriage of justice” is even harder—typically requiring the record to be virtually devoid of evidence of guilt.
AKS “knowingly and willfully”: The government need not prove the defendant knew the statute number or name. It must prove the defendant acted deliberately and with awareness that the conduct was unlawful—something inferable from training, concealment, and the nature of kickbacks.
Role enhancement (“manager or supervisor”): If a defendant directed or oversaw other participants (even without being the top leader), § 3B1.1(b) can apply, increasing the Guidelines range.
Acceptance of responsibility: Typically granted when a defendant promptly admits wrongdoing and does not force a full trial on factual guilt; it is commonly denied after trial absent unusual circumstances.

V. Conclusion

United States v. David Byron Copeland reinforces two practical rules in federal criminal litigation within the Eleventh Circuit: (1) a conspiracy acquittal does not undermine substantive Anti‑Kickback convictions, because sufficiency is evaluated independently under United States v. Powell; and (2) on sentencing, a defendant’s supervisory role in a kickback-driven sales operation can support § 3B1.1(b), which in turn forecloses § 4C1.1 zero‑point offender relief, while a full trial contesting guilt ordinarily defeats § 3E1.1.

Although designated “not for publication,” the opinion is a clear application of established Eleventh Circuit and Supreme Court doctrine to common defense arguments in health-care fraud and kickback prosecutions.