## Facts

- Solomon Kaplan was prosecuted for participating in a scheme involving fraudulent medical billing that defrauded insurance carriers and health-care benefit programs.
- A jury in the Southern District of New York convicted Kaplan of: conspiracy; two counts of mail fraud; false statements in connection with health-care matters; health-care fraud; witness tampering; and making false statements to the FBI.
- The prosecution relied heavily on testimony from Alexander Galkovich describing conversations and interactions with Kaplan about the fraudulent activity.
- Over defense objection, Galkovich offered an opinion that Kaplan “knew exactly what he was getting into,” based not only on his dealings with Kaplan but also on “what he heard other people say” about Kaplan.
- Other witnesses similarly testified in conclusory terms about what other participants “knew” or “must have known” about the fraud, rather than confining testimony to specific observed facts.
- Kaplan also challenged the jury instructions on the witness-tampering count in light of Supreme Court authority addressing the mental-state and “official proceeding” connection required for obstruction-type offenses.
- For the false-statements count, Kaplan argued that differences between a bill of particulars and the government’s trial proof constituted a constructive amendment or a prejudicial variance.

## Issues

1. Whether the district court violated Federal Rule of Evidence 701 by admitting lay opinion testimony asserting Kaplan’s knowledge of the fraud and testimony purporting to describe other participants’ knowledge (Counts 1–5).
2. Whether the witness-tampering instruction properly required wrongful intent and a sufficient connection to an official proceeding (Count 6).
3. Whether a conscious-avoidance instruction was properly given on the witness-tampering charge (Count 6).
4. Whether differences between the bill of particulars and trial proof on the § 1001 charge amounted to a constructive amendment or a prejudicial variance (Count 7).

## Decision

- The Second Circuit vacated Kaplan’s convictions on Counts 1–5 and remanded for further proceedings.
- The court held that admitting lay opinion testimony on Kaplan’s knowledge—particularly where it rested partly on what the witness heard from others—lacked an adequate Rule 701 foundation and improperly conveyed an ultimate mens rea conclusion.
- The court also disapproved lay testimony asserting what other participants “must have known” without grounding in specific observations.
- The court found the Rule 701 error on Kaplan’s knowledge was not harmless given its prominence in the government’s proof on the fraud-related counts.
- The court affirmed Kaplan’s convictions on the witness-tampering and false-statement counts (Counts 6–7).
- The court upheld the witness-tampering instruction as consistent with the requirement of corrupt (wrongful) persuasion and an adequate connection to an actual or foreseeable official proceeding.
- The court upheld the conscious-avoidance instruction as supported by the evidence and properly limited.
- The court rejected the constructive-amendment and prejudicial-variance arguments on Count 7.

## Legal Principles

- Federal Rule of Evidence 701 permits lay opinions only when they are rationally based on the witness’s perception, helpful to the jury, and not based on specialized knowledge; conclusory assertions that a defendant “knew” the criminal nature of conduct may be inadmissible when they lack a concrete perceptual foundation or rest on hearsay impressions.
- Lay testimony that effectively decides the central mental-state question risks usurping the jury’s role, particularly where jurors can draw their own inferences from described conversations and conduct.
- Witness-tampering liability under 18 U.S.C. § 1512(b) requires proof of corrupt (wrongful) intent and a sufficient connection to an actual or foreseeable official proceeding; jury instructions are assessed as a whole for whether they permit conviction for innocent persuasion.
- A conscious-avoidance instruction is permissible where the evidence supports that the defendant was aware of a high probability of the relevant fact and deliberately avoided confirming it, and where the instruction does not permit conviction based on negligence or recklessness.
- A constructive amendment occurs when the indictment’s terms are effectively altered so the defendant may be convicted of a different offense; a variance in proof is not reversible absent prejudice such as unfair surprise or double-jeopardy risk.

## Conclusion

The Second Circuit vacated Kaplan’s fraud-related convictions because the jury heard improper Rule 701 lay opinions about Kaplan’s and others’ knowledge, but it affirmed the witness-tampering and false-statement convictions after finding no instructional error and no constructive amendment or prejudicial variance.


United States v. Kaplan, 490 F.3d 110 (2d Cir. 2007)