United States v. Cassandra Thomas
2013 U.S. App. LEXIS 15870
| 5th Cir. | 2013Background
- Dr. Cassandra Thomas operated an in‑home physical therapy provider (CMPM) from 2002–2005 and was indicted on ten counts of health‑care/Medicare fraud for billing for unnecessary/skilled services, using unlicensed and unsupervised personnel, inflating hours, and waiving copayments; CMPM accounts held about $2.3 million seized by DOJ.
- Trial counsel were Joyce and Tom Freeland; Tom Freeland faced an unrelated misdemeanor charge shortly before trial but continued to represent Thomas; potential jurors were not questioned about that charge.
- Thomas was present for most voir dire but absent from an in‑chambers conference when peremptory strikes were exercised and when the court read jurors into the record; she told counsel beforehand she wanted at least one African‑American male on the jury.
- After a week‑long trial a jury convicted Thomas on all counts; she was sentenced to 168 months and ordered to pay restitution. Thomas moved for a new trial alleging ineffective assistance and denial of right to be present; district court held an evidentiary hearing and denied the motion.
- On appeal Thomas raised: (1) indictment should have been dismissed under rule of lenity/ambiguity of Medicare regs; (2) erroneous evidentiary rulings (state licensing, excluded article/regs); (3) violation of right to be present at critical stages (jury impanelment and in‑camera juror conferences); and (4) ineffective assistance of counsel. The Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of indictment / ambiguity of Medicare regs | Thomas: Medicare rules on use of unlicensed providers and required physician supervision were ambiguous; indictment should be dismissed under lenity | Government: indictment alleges independent allegations (services medically unreasonable/unnecessary) sufficient to state offenses | Affirmed — indictment adequate because independent factual allegations (unnecessary/unreasonable services) state offense (de novo review) |
| Admission/exclusion of licensing evidence and post‑2005 regs/article | Thomas: state licensure evidence irrelevant and exclusion of 2009 article/regs deprived ambiguity defense | Government: state licensure evidence relevant; post‑2005 regulatory changes irrelevant because they postdate conduct | Affirmed — no plain error; state licensing relevant, later regs/article excluded as irrelevant to conduct period |
| Right to be present at jury impanelment and in‑chambers juror conferences | Thomas: exclusion from peremptory exercise and impanelment was structural error; exclusion from in‑camera juror meetings violated right to be present | Government: defendant waived or voluntarily absent from in‑camera matters; any absence during impanelment was not prejudicial | Affirmed — absence from in‑camera juror conferences waived under Rule 43; absence from impanelment was plain error but Thomas failed to show prejudice affecting substantial rights, so no reversible error |
| Ineffective assistance of counsel (various acts/omissions) | Thomas: Freelands failed to disclose Tom Freeland’s charges, failed to object to seized account evidence and alleged appeals to class prejudice; cumulative error | Government: counsel made reasonable strategic choices; district court found decisions were strategic and not objectively unreasonable; no prejudice shown | Affirmed — Strickland standard not met: counsel’s conduct deemed strategic and Thomas failed to show prejudice |
Key Cases Cited
- United States v. Jones, 664 F.3d 966 (5th Cir. 2011) (similar Medicare provider fraud facts; ambiguity in regs did not defeat conviction where other improper‑billing facts alleged)
- United States v. Fontenot, 665 F.3d 640 (5th Cir. 2011) (standard for de novo review of indictment sufficiency)
- Gagnon v. Scarpelli, 470 U.S. 522 (1985) (right to presence and distinction between constitutional and Rule 43 protections)
- United States v. Curtis, 635 F.3d 704 (5th Cir. 2011) (requirements for defendant’s presence during jury selection and peremptory strikes)
- United States v. Alikpo, 944 F.2d 206 (5th Cir. 1991) (presumption against waiver of right to be present at jury selection; counsel’s statement insufficient to waive)
- United States v. Olano, 507 U.S. 725 (1993) (plain‑error framework and burden to show prejudice for forfeited errors)
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance standard: performance and prejudice prongs)
- Puckett v. United States, 556 U.S. 129 (2009) (plain‑error test clarifications)