United States v. Loretta Tarango

DeMOSS, Before STEWART and CLEMENT, Judges. Circuit STEWART, CARL E. Judge: Circuit appeals The Government from the dis- trict court’s granting order Lorretta Tar- ango’s motion for a A jury new trial. Tarango guilty found aiding and abet- co-defendant, Patel, ting Dipakkumar her in his efforts to defraud various federal programs by submitting health care false billing comply statements that failed to with the governing provisions pro- of those grams. The Government contends that the district court abused its discretion granting disagree, the motion. We and for below, forth reasons set affirm the district court’s of a new trial. FACTUAL AND PROCEDURAL

BACKGROUND charged along was Patel alleging they two count indictment conspired to defraud the Government engaging an intricate health care designed scheme fraudulently bill both federally funded care pro- health insurance grams, private insurers. The indict- provided Tarango, ment while work- ing capacity her as the manager office practice, for Patel’s medical intentionally submitted false Health Care Finance Ad- (HCFA) ing oxygen 1500 claim forms.1 home Under units. Medicare’s ministration governing provisions, prohibited that Patel would Alur was alleged The indictment per day filling applicable from contents of patients and 100 between 50 see time, Form, but B.2 It al- amount of HCFA 484 Section only a nominal Alur intentionally leged improperly provide false claims would submit would B patient copy a draft of a Section form to Taran- that he had met with the individual go it who then transcribe the informa- longer period. Apparently, would for a much tion B form. for Patel to submit onto new Section Thereaf- not uncommon ter, document, that, sign falsely if Patel would multitude of claims the HCFA literally, certifying necessity equip- of medical forms were read would claim that Taran- patients alleged that Patel met with in ment. indictment have meant The Alur, Patel, go along fraudulently and with per day. of 24 hours Patel would excess in attempted to receive of 5.3 mil- diagnoses false on HCFA excess submit by submitting provided to health lion false HCFA claim forms which were dollars claim forms to the Additionally, Patel would and 484 relevant care insurers. an en- health care insurers. payments deductible often waive patients return for more ticement to have charged Count One of the indictment unnecessary medical visits. conspiring and to de- Patel.with program a in alleged fraud health care benefit The indictment § fraudu- violation of 18 U.S.C. 371.3 Count Two facilitating a role in Patel’s played charged Tarango of and underlying The basis for the the indictment lent conduct. aiding abetting Patel with and a scheme to from Patel’s relation- indictment stemmed Alur, program a Du- defraud a care benefit ship supplier with Prakash of health ,of (DME),. §§ 2.5 violation 18 U.S.C. 13474 and Equipment rable Medical includ- only, punishment 1. 1500 claim forms are the standard- misdemeanor for such HCFA physician conspiracy shall not exceed the maximum when claims are ized forms used punishment provided for such misdemean- companies. submitted to insurance or. Form, a 2. HCFA 484 B is form that Section part: provides § in relevant 18 U.S.C. completed by treating physician a must be executes, willfully knowingly and Whoever coverage provide for before Medicare will attempts or to execute a scheme or arti- oxygen equipment. home The must not form fice— by supplier completed a of Durable Medi- be (1) any pro- to defraud health care benefit (DME). treating physi- Equipment cal The gram; or ultimately provide cian must a Certification of obtain, (2) by means of false or fraudu- (CMN) Necessity coverage before can Medical prom- pretenses, representations, or lent provided. ises, money property any or owned of the of, custody any by, or or under the control part: § provides relevant 3. 18 U.S.C. 371 program,’ care benefit health ,in persons conspire If two or more either delivery pay- with the of or connection any benefits, items, commit offense the United or ser- ment care for-health States, vices, defraud or or to title shall be fined.under this or im- any agency any thereof in manner or for prisoned years, not more or both. than per- any purpose, bodily or and one more such results in serious If the violation ' any object act to effect the of the injury person sons do .. shall be fined under such conspiracy, imprisoned each shall be fined under this this title not more than or both; imprisoned years, not more than five the violation results title or and if death, person years, such shall be fined or both. however, offense, title, If, imprisoned term the commission under this life, years object conspiracy, is a or for or both. which is the that, jointly tried. The district court noted even in Tarango and Patel were selection, multiple instances are appear he did where defendants While joined, properly may trial’s com- still be prior to the defendant Patel absconded thus, joinder; prejudiced by the record reflects such mencement. major local news new trial be warranted. The district that his absence was the lead headline for court observed that much of the evidence story, that was covering exclusively the trial. and witness focused regional newspaper Patel, though that Patel would not be on even The appeared As it he absent. trial, gave court present at the the district was also troubled the discordant permit- limiting instruction nature the evidence the two absentia, defendants, specifically while that a limited num- ted Patel to be tried throughout directly implicated ber of Taran- present remained witnesses go. the course of the role proceeding. principal Tarango played, entire Over brought ap- alleged, forth that she the Government proximately copy provided 50 witnesses who testified would information to her conduct, only onto principally about Patel’s the HCFA 1500 and 484 claim forms directly testifying eventually five witnesses as to Tar- that were submitted to Medi- indicate, ango’s complicity in the schemes enumer- care. These forms would for ex- jury in ample, requesting ated the indictment. The eventual- that Patel was certain verdict, ly finding Tarango equipment returned a not medical particular patients, guilty on One of the indictment even when such equipment Count was not medi- (conspiracy), finding guilty cally necessary. and her on The Government’s case (aiding abetting). against Count Two and Taran- Patel powerful, was so the court trial, go’s noted, pursu- disputed counsel moved for that it not that Taran- was ant Rule of in go, capacity manager, to Federal Criminal Procedure her as office had 33,6 grounds on that she had the been submitted claim forms that contained prejudiced consequence being joint- as fraudulent certifications of medical neces- However, ly sity. tried with Patel.7 district the court noted that also concurred, that it agreeing appar- became the crime of health care fraud a specific is ent trial that progressed parties as the the intent crime and that minimal witness tes- granted timony should have severed and the supported been the Government’s con- was, fact, motion Tarango for new tention that aware provides part conspired § 5. 18 U.S.C. in relevant that: to defraud various federal health (a) programs. care against There was little witness testi- Whoever commits an offense the aids, abets, counsels, mony Tarango United States mands, engaged wrongdo- com- that had commission, procures induces or its ing. testimony actually involving Much of the punishable principal. as a Tarango suggested copy that she would infor- (b) willfully Whoever causes an act to be originally provided by mation to her someone directly performed by done which if him from Alur's office. This information would be against another would be an offense by Tarango, example, transferred onto a punishable principal. as a new HCFA Section B claim form. Thereafter, sign Patel would the form as a provides part: Fed.R.Crim.P. 33 in relevant treating physician, attesting to Medicare that motion, Upon the defendant’s the court DME, particular patient required such as a any judgment vacate and a new trial if However, oxygen testimony home unit. little justice requires. the interests of so suggests Tarango that was aware that what transcript 7. Our review of the trial makes doing improper. she was disproportionate weight clear that the proving evidence went towards that Patel that necessarily constituted The Government also avers it will her conduct to recall the multitude of wit- be forced fraud. brought orig- nesses that were forth regarding Patel’s of the evidence Much subsequent inal and im- diagnoses false knowledge of the weeks, likely would last another four on his was based billing procedures proper thereby placing an additional financial bur- inad- this evidence was expertise; medical taxpayers.8 on The Government be- den Tarango. The district against missible court, by granting that the lieves district that this case court commented trial, ignored the motion for a new testimo- in a disfavored expressly circumstances ny Tarango cognizant was indicating involving multiple conspiracy prosecution abetting a aiding that she was scheme defendants, testimony that was al- in that (cid:127) Ultimately,- to defraud Medicare. the Gov- solely it jury lowed to be heard suggests ernment was un- pro- to be to Patel was deemed pertained her own and that the done Taran- allegations against as to the bative given that Patel jury’s proper decision was testimony was inad- though the go, even separate on mail guilty was found-not two effect, In the court missible her. counts, fraud and that was found little evidence found that there was guilty conspiracy not on the count of, or had knowledge had her. The avers that this indi- in, engage the conduct specific intent fully capable cates that Moreover, the Patel was convicted. which admissible discerning which evidence was limiting instruction court found that respective and relevant as defen- ineffective gave thus whether the dant. We will consider prejudicial from the ef- insulating by granting a new district court erred joined Patel. being fect of contests'the appeal, On the Government DISCUSSION a hew granting district court’s order A. Review Standard of arguing that the decision constituted review a district court order We con- of discretion. The Government abuse trial for' án granting a motion for a new inappropriate that a new trial tends See, e.g., of discretion. United abuse showing no because there has been Robertson, 1113, 1116 v. 110 F.3d States any mani- byproduct was the of verdict Dula, (5th Cir.1997); v. 989 United States suggests instead that injustice, fest (5th Cir.1993); States F.2d 778 United jury’s verdict was consistent with (5th Cir.1986); 589, 597 Arroyo, v. 805 F.2d view, In presented. that was its Leal, 1108, 1110 v. 781 F.2d United States Patel prejudiced was not because (5th Cir.1986). absconded, “spillover and there was no had disproportionate weight even if the effect” Rule Criminal Proce- B. Federal of con- of evidence centered on Patel’s dure SS duct, anything rather than for a new trial Granting a motion may done to facilitate the fraudulent have if it is permissible to Rule 33 is pursuant health care scheme. argument, briefing during that it recognize or oral We that costs are an incon- its never difficulty securing presence sequential of a will have consideration in the retrial Nonetheless, expected to be significant will be of the witnesses that defendant. it is Tarango. a argued, in recalled at retrial the Government has never whether 672 seemingly contradictory evidence. justice. interests of oncile by the

necessitated Dula, Robertson, grant- at 1117. If v. 989 F.2d 110 F.3d See United States See Cir.1993). Instead, ed, simply have we must would 778-79 the Government try accused. simply concern ourselves with whether or opportunity second States, 224 v. in Miller United court’s ultimate decision generally not the district See (5th Cir.1955). In determin- denying the motion for a new granting F.2d motion, the dis- ing whether trial a clear abuse of its discre- constituted carefully “weigh the evi- must trict court tion. Id. credibility may of the

dence and assess Propriety C. Joinder and Severance during its consideration witnesses Robertson, trial,” 110 F.3d motion for new Proce Federal Rule Criminal Florida, 457 U.S. (citing Tibbs v. 8(b) provides multiple that when de dure 2211, 2215-16, 31, 37-38, 102 S.Ct. alleged participated fendants are to have (1982)), entirely not must L.Ed.2d 652 but transaction, they may act or the same function, v. jury’s United States usurp the indict charged together be the same (2d Cir.2001), 246 F.3d Ferguson, propriety joinder ment. The will often jury’s verdict because simply set aside allegations looking be assessed to the the district court it runs counter to result contained the indictment. See United See, e.g., appropriate. believed was more Chagra, v. States Robertson, 110 F.3d at 1118. “[tjhere prefer is a system trials ence federal jury’s guilty ver Setting aside a together,” of defendants who are indicted justice may be dict in the interests of 534, 537, v. U.S. where appropriate under circumstances Zafiro 933, 937, (1993), 122 L.Ed.2d 317 113 S.Ct. brought forth at the evidence particularly conspiracy charge when verdict, tangentially support guilty but Neal, 27 involved. United States v. sufficiently actuality, “preponderates (5th Cir.1994). 1035, 1045 heavily against the verdict such justice may have occurred.” miscarriage of however, in may, There Lincoln, United States joining stances when the of offenses or (8th Cir.1980). Accord, e.g., 1319 Robert actually prove preju defendants will to be son, 1118; at States v. dicial, thus, may necessary and for a (6th Cir.1988). 260, Ashworth, F.2d 266 836 court to separate district “order trials of Similarly, while vested with discretion counts, trials, sever the defendants’ or if grant pursuant trial to Rule 33 provide any justice other relief re the necessary in accordance with interests 14(a); quires.” see also Fed.R.Crim.P. justice, pow of that this we have observed v. United 362 U.S. Schaffer infrequently by er dis should be exercised 921(1960) 945, 948, 80 S.Ct. 4 L.Ed.2d courts, by “excep trict unless warranted (observing judge that “the trial has a con tional” States circumstances. See United tinuing duty stages at all of the trial to Scroggins, v. F.3d ap a severance if does 2004) (citation omitted); see also United If pear”). proper initial determination Sinclair, F.2d 51 n. 1 regarding propriety has been made the of defendants, joining severance is warranted appellate only In our as an “if there is a serious risk that a capacity court, evidence, compromise specific we must not revisit reeval trial would defendants, credibility, attempt right prevent uate witness to rec- of one of the rately proving allegations against the making a reliable Patel jury from the Zafiro, Tarango.10 innocence.” 506 and guilt or about grant- at The at 113 S.Ct. U.S. Similarly, the Government makes much of a motion to sever will be ing or denial Tarango acquitted of the fact that was of discretion, for an abuse Unit- reviewed one of the counts her. In its esti- Bieganowski, ed States mation, simply there was showing no (5th Cir.2002), which, under these cir- by prejudiced being she was virtue of tried cumstances, exceedingly deferential is along with Patel.11 The Government be- Neal, 27 F.3d at 1045 n. 15 standard. See lieves that the district court give failed to (characterizing overcoming the abuse of consideration to the fact that numerous “rigorous” standard as discretion witnesses testified as to the extent of the a mo- challenging context of the denial of which occurred in fraud Patel’s office sever). tion to Tarango where manag- served as the office similarly er. The Government avers that a ANALYSIS testified that he Tarango witness informed The Government maintains him, had Patel double-billed and when fact abuse its the district court did in confronted, Tarango did nothing remedy challenges discretion. the situation when asked to do so. The grounds upon the. two which the district that, primary argument Government’s (1) ruling: its supported court least, very willfully was blind because Patel was absent prejudiced degree graft taking of fraud and (2) trial; and disparity from the office, by and the place verdict against Tarango versus large supported weight of the brought against Patel. The Government evidence. Tarango likely preju was not weighed by jury proved, could be the in this Patel, determining guilt the or innocence of expressed, in the context The district generally United States v. see Hernandez-Mi acquittal, denying a of motion for randa, (9th 1979) given progressed he how the trial had (observing flight prior the commence- to grant a new trial: was inclined to guilt), a ment of trial infers consciousness very you a I will tell all that I have had being inadequately Tarango shielded from having Tarango this deep concern that Ms. in given jury's prejudiced that the attention was these circumstances with Dr. Patel case under missing "unavoidably” focused on the Patel. prejudice gone a substantial to has worked by may except cured at all her that not be 10. We find it ironic that the Government granting end of this a new trial to her ap- this instruction on seeks to benefit from [Tjhere really good ... is a chance peal, though strenuously objected to case even receiving my I would a jury the first time in career the instruction. (1957) (Frankfurt- 294, 303, 1 of course is some of the L.Ed.2d 278 starting point (“The brought against er, J., that was Taran- dissenting) evidence witness, formerly in go. who worked One not having should have the windfall of Patel, testified that he association by influenced evidence a de- Tarango informed that he was troubled which, they fendant as a matter of law billing procedures— the medical office’s they should not consider but which cannot submitting seemingly bills for un- such as minds.”). put out of their Courts have Tarango necessary apparent- blood tests. prejudiced noted defendant be be ly responded that he would best served jointly he alongside because was tried an directly concerns to Pa- by addressing his absent co-defendant. In United States v. Tarango had tel. Others also testified Davidson, the Sixth Circuit held due billing responsibility sole office’s government’s to' the introduction of evi- that she had affixed her procedures and probative pertained dence that was as it to signature billing to statements that were co-defendant, an absent but inadmissible insurers, attesting that the medical sent prejudicial as to the defendant who information contained therein was accu- trial, present throughout remained when, fact, in the statements con- rate — new trial was warranted. This, information. tained fraudulent how- (6th Cir.1991). We believe that ever, controverted, never even has been particularly Davidson is instructive as it short, In little Tarango herself. evidence exceptional relates to the circumstances presented was to show was this matter. diagnoses aware that the medical or the requests equipment for medical contained imply We do not mean to false, billing statements were preponderance because the of the evidence thereby illegal conduct on could constitute exclusively relates almost to one defendant part.13 her in multiple trial, defendant conspiracy the defendant who had quantitatively and principal compels concern which Our us qualitatively less brought against evidence granted to hold that should be them presumptively entitled to a new stems, measure, large new trial from the a disparity as in a prejudice being clear that resulted from involving multiple defendants does not alongside essentially “empty tried chair,” ie., Patel’s, and of itself constitute prejudice. See towards which the Gov- Neal, 1045; 27 F.3d at see also fully upon. ernment’s case was centered United Rocha, troubled, just Similarly, we are dis- was, by Similarly, Tarango trict court fact that was not permitted great prejudiced simply by to hear a deal the fact that her co- evidence that defendant being was inadmissible tried in absentia. See Tarango. generally See Delli Paoli v. United States v. Mikolajczyk, 137 F.3d Cir.1998) 352 U.S. 241-42 S.Ct. (distinguishing trial in case like this because what I such to Ms. in this case unique consider to be the circumstances here require a new trial. Tarango sitting having with Ms. here alone Patel, significant, 13. We believe that it is also bear the trauma aof trial when Dr. her though by employer, dispositive, no person and the means that there who has I think in overwhelming Tarango has the face of evidence been no demonstration that left the re- Court,

jurisdiction deeply I am con- ceived remuneration because of her in- tried, cerned that as hard as I've there could volvement in the scheme. to de- the finding prejudice vantage point provided and no district court’s Davidson him- it opportunity co-defendant absented with the to hear the wit- fendant where joint jurors’ days after their trial had nesses arid discern the self a few reactions Stratton, they what heard and begun); but observed. See cf. (5th Cir.1981) (noting Arroyo, such, 805 F.2d at 599. As the dis- the of a co- trict court’s determination that in some instances absence that Indeed, prejudicial). can conspirator requiring suffered that she be mindful jury granted that when a re- a new trial we are also carries considerable id.; verdict, weight. it finds a “split” turns a wherein See see also United States v. Pedrick, charges but guilty defendant some 1999) (“The others, a presumption

not as to there is district court saw the wit- nesses, evidence, jury was able to follow the heard all of the that position that the evidence was the best to evaluate court’s instructions whether [a defendant weighed compelling preju- has] to be the co-defendants suffered Neal, trial.”). warranting at 1045. dice individually. See new Therefore, reasons, for the However, foregoing approxi- were given there at trial— n overwhelming and because the nature of mately 50 witnesses who testified exclusively the Government’s case focused disproportionate number of whom tes- defendant, conspicuously on a absent co-defendant, while missing to a tified as demonstrably less evidence there was scant to show that acted the spe- anything improper than draft the did other conspir- cific intent to aid and abet Patel’s claim forms as she was relevant HCFA acy pro- to defraud federal health care Patel, to do because the instructed grams, we hold that the district court did significant to hear a amount permitted (as concluding not abuse its discretion in pertained of inadmissible evidence justice warranted granting interests degree and due to the of notori- Tarango), Tarango a absence, new ety attending to Patel’s we find cumulative effect of these factors CONCLUSION totality, strongly when viewed their weigh against overturning Accordingly, the district the district court did not granting Tarango’s court’s determination. abuse its discretion for a new and the motion au- permissive Because Rule 33 is hereby affirmed. if grant thorizes the of a new trial AFFIRMED. justice require, interests of so the district opinion requisite de- court’s evidences CLEMENT, EDITH BROWN Circuit circumspection necessary in gree of this Judge, dissenting: admittedly carefully unusual situation — weighing system’s majority disregards the federal historic relevant case joint establishing preference compelling trials of individuals law and court abused its discretion together who have been indicted versus that-the district trial. A dis- granting Tarango our concomitant concern that a defendant prop- trict court should severance to prejudiced simply should not be judicial economy. erly joined “only if there is a sake of we defendants trial would com- believe deference is owed to the dis- serious risk right .trial perspective only promise specific trict court. Our allows us of one defendants, prevent from mak- transcript, to review the trial’s whereas 676 present- much of the evidence guilt about or inno-

ing a reliable States, joint background in the trial is relevant ed 506 U.S. v. United cence.” Zafiro workings of to establish the existence and 933, 122 534, 539, L.Ed.2d 317 113 S.Ct. the fraud scheme. The district (1993). only promote judi- not trials Joint only gave found that six of the witnesses serve the interests of economy cial but against Patel. solely admissible ineq- “avoiding the scandal and justice by convincingly argues The Government “enabling verdicts” and uity inconsistent retry Tarango, if forced to would have cul- of relative accurate assessment more engage costly present- endeavor of op- which sometimes pability advantages — ing nearly all of the evidence entered Rich- the defendant’s benefit.” erate to Severance, joint “required trial. on Marsh, 200, 209-10, 107 481 U.S. ardson v. disparity of a in the evidence the basis (1987); 1702, see also 95 L.Ed.2d 176 S.Ct. Rocha, cases,” only in the most extreme 407, Causey, 185 F.3d 416 v. United States 229, inappropriate 916 F.2d at in this Abner, (5th Cir.1999); States v. 825 United case. Cir.1987). (5th 835, F.2d 845 majori- The second rationale behind the majority The concludes ty’s equally unpersuasive. affirmance is in evi- prejudiced by disparity In overstating the effect of Patel’s absence against the two defen- presented dence majority Tarango’s on relies on noticeable absence from dants and Patel’s Davidson, v. United States 936 trial. justifies Neither reason (6th Davidson, however, is 861 only majority emphasizes five instructive,” “particularly not United directly fifty at trial testified witnesses (5th Tarango, 666 States v. 396 F.3d Cir. Tarango’s about in the health involvement 2004), charges because the defendants’ effect, spillover care fraud scheme. Some sufficiently not related: the defen- were itself, severance. does not warrant charged dant tried in absentia was Bieganowski, United v. 313 F.3d counts, States including tax filing ten evasion and (5th .2002); returns, v. United States Cir income tax which were unre- false (5th Williams, Cir. single conspiracy 809 F.2d lated to the narcotics 1987). Davidson, charge repeatedly held Davidson. This Court has It undisputed F.2d at 861. appropri- limiting instructions are joined properly and Patel were as defen- remedy ate to cure caused alleged participated dants to have one evidence that is admissible act same or transaction. Peterson, Fed.R.CRIM.P. codefendant. United States 8(b). Patel’s absence nor the Neither (5th Cir.2001); 244 F.3d United varying of evidence amounts (5th Rocha, 219, 228-29 States v. 916 F.2d satisfy “required showing factually Cir.1990) not (holding that “severance is specific compelling prejudice as a re- required merely because the trial” with an code- sult absent only introduced evidence admissible fendant to warrant new trial. Murr v. co-defendants”); against individual United Merida, 2000). Cir.1985) (asserting that severance is not

needed if sort out the “the could provided degree The district court is evidence each defen- reasonably and view determining of discretion in whether dant relating and the to that de- grant a motion for severance or new trial. fendant separately”). Overstating disparity the effects of the

677 (5th Cir.1996). majority might not war- mischarac- Patel’s absence evidence or opinion. by stating district court’s terizes the evidence at trial reversing rant that However, testimony suggests evidence indicates that that Tarango clear “little trial.1 a fair doing received was aware what she was that improper.” Tarango, 396 F.3d at 670. As First, effective the district court issued manager, Tarango Patel’s office .received as' to both the evi- limiting instructions fraudulent, billings numerous vio- notices inadmissible presented which was dence lations from the state of Texas. Several Tarango and Patel’s absence. discussing witnesses recounted the clinic’s presumption is a well-established There practices Tarango. fraudulent ofOne juries are able to follow the court’s these, Dr. Wasim Sheik received letters compartmentalize the evi- instructions Tarango warning from him not to report Zafiro, each defendant. 506 dence Indeed, allegations to the his authorities. 933; Richardson, 540-41, 113 U.S. at S.Ct. Tarango’s in- own indicated an 1702; 107 United 481 U.S. at S.Ct. government. tent to defraud the She ad- (5th Krout, 66 F.3d 1430 during period, mitted that a seven-month Cir.1995). properly Because severance companies appoint- she billed insurance regarded -a joined defendants is last twenty-four ments for more than hours measures, resort, lim- “less drastic such así per day, days, seven conceded week. She instructions, often will suffice to"cure iting testing there was no equipment Zafiro, 506 U.S. at prejudice.” risk of perform office to oxygen Patel’s level 539,113 933. S.Ct. indicated on forms she tests submitted Second, verdict, jury split reached a government. to She stated she on the acquitting Tarango conspiracy copayments patients did not collect from charge. disparity If the evidence company and that she billed insurance jury.from flight “prevented] Patel’s jail by for visits Patel when he was after making guilt a reliable about (cid:127) indicted. being innocence,” id., jury have con- would Biega- on both counts. See victed It is immaterial that witnesses testified nowski, (finding that the 313 F.3d Tarango copied provided information of one codefendant on three of acquittal forms, or to her Alur onto the insurance counts and another codefendant on five that “little evidence was show supported one count the conclusion that the medical was aware evidence). jury properly segregated diagnoses reqdests or the for medical Third, billing contained in the state jury’s supported equipment verdict is Tarango, were false.” 396 F.3d at compelling against Tarango. We ments prove has 674. “Because it is difficult to intent have refused to find defendant evidence, from a to defraud from direct suffered when evidence of there is evidence to convict the consider circumstantial sufficient in Griffin, v. fraudulent intent and draw reasonable defendant. United States (5th Cir.2003); v. ferences therefrom.” United States F.3d 364-65 Broussard, 1131, 1140 Bailey, 1036-37 327 F.3d States engage judge We a more Additionally, a trial sets when aside therefore rigorous review the district court’s decision and orders a new this verdict deny opposition grant rather than a motion for new Court’s “deference to him is in Inc., Id.; Gap jury.” Laxton v. the deference due to the Shows v. Inc., (5th Cir.2003). Bedding, Jamison evidence, 2003). which The Government’s

undeniably established in ques clinic was involved

aware that the provided the billing practices,

tionable minimum, compelling at a circum

jury, evidence to convict aid

stantial a scheme to commit health

ing abetting

care fraud. granting

I dissent from Tar- respectfully

ango a new trial. America, STATES of

UNITED

Plaintiff-Appellee, RUEDA-RIVERA, Enrique

Oscar Jr., Joseph Gay, Atty., H. Asst. U.S. Defendant-Appellant. Lockwood, Antonio, TX, Ellen A. San No. 04-50322 Plaintiff-Appellee. Summary Calendar. Philip Lynch, J. Lucien B. Campbell, Def., Antonio, TX, Fed. Pub. San for De- Appeals, United States Court fendant-Appellant. Fifth Circuit.

Jan. JOLLY,

Before HIGGINBOTHAM and GARZA, Judges. Circuit PER CURIAM: Enrique Oscar appeals Rueda-Rivera jury-trial his conviction and sentence for being found in following the United States removal, deportation and having without Attorney obtained the consent of the Gen- Secretary Department eral or the AFFIRM, Security. Homeland We briefly write to make clear that the Certifi- (“CNR”) cate Nonexistence of Record notes absence, the trial analysis transcript diced because of Patel’s Our con- presump prejudice by in fact benefitted from the firms that suffered have fact, jointly In suggestive being tion that her failure to flee was tried with Patel. Additionally, prior to the conclusion of her innocence.9 the Gov recognized problems in- argues pro ernment that the district court district cautionary trying the two defendants to- regarding vided a instruction herent necessary responsibility sepa- gether.12 We believe the Government’s the district 9. The district court observed that as the trial 11. This assertion countered progressed cautionary profound disparity it became clear the in- court’s assessment of the given structions that had been to the of evidence that was i.e., regarding flight, Patel's intentional that if respective defendants.

Case Details

Case Name: United States v. Loretta Tarango

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 7, 2005

Citation: 396 F.3d 666

Docket Number: 03-50810

Court Abbreviation: 5th Cir.