U.S. v. Milligan, s. 92-6654--92-6666
| Decision Date | 31 March 1994 |
| Docket Number | Nos. 92-6654--92-6666,s. 92-6654--92-6666 |
| Citation | 17 F.3d 177 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Tamara MILLIGAN (92-6654); Benny Milligan (92-6655); James McElveen (92-6666), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William Cohen, Asst. U.S. Atty. (argued and briefed), Ernest W. Williams, Office of the U.S. Atty., Nashville, TN, for U.S.
William J. Marett, Jr. (argued and briefed), Bryan & Marett, Nashville, TN, for Tamara Milligan.
R.N. Bo Taylor (argued and briefed), Waynick & Cate, Nashville, TN, for Benny Milligan.
Sumter L. Camp, Asst. Federal Public Defender (argued and briefed), Federal Public Defender's Office, Nashville, TN, for James McElveen.
Before: KEITH, NELSON, and RYAN, Circuit Judges.
Defendants-Appellants Tamara Milligan, Benny Milligan and James McElveen appeal their jury convictions and sentences. All three were charged with four counts of mail fraud, in violation of 18 U.S.C. Secs. 1341 and 2; one count of wire fraud, in violation of 18 U.S.C. Sec. 1343; and one count of conspiracy, in violation of 18 U.S.C. Sec. 371. For the reasons stated below, we AFFIRM.
In July 1990, Benny Milligan ("Milligan") performed janitorial work at the Martin-Marietta plant in New Orleans, Louisiana, which manufactured external fuel tanks for the National Aeronautic and Space Administration's ("NASA") space shuttle. He received health insurance subsidized by NASA, with Connecticut General Insurance Company as the provider. In return for a minimal deductible and premium, the health insurance plan provided complete coverage to Milligan and his family. James McElveen ("McElveen") a commercial painter, had no health insurance.
On Sunday, July 8, 1990, Milligan, his wife Tamara, McElveen and Robert Johnson were visiting their friends, Justin and Tabitha McCalib, in Hohenwald, Tennessee. The six friends travelled to a waterfall on the Natchez Trace. As the group approached the waterfall, McElveen accidentally ran off an embankment obscured by overgrown bushes and trees and fell thirty feet. Because he was unconscious and bleeding profusely, McElveen's friends carried him up the hill, and drove him to the hospital. McElveen, whose palor was grey and lips blue, cried and moaned, but did not speak.
Upon arrival at Lewis Community Hospital ("LCH"), Milligan ran into the hospital and stated he needed assistance for an accident victim. He identified the victim as "Benny Milligan." Upon returning to the car with hospital personnel, Milligan secretly told his wife he identified McElveen as "Benny Milligan." There is evidence McElveen's friends questioned whether he would receive medical care if he was uninsured. Tabitha McCaleb stated she had seen news reports of hospitals evicting uninsured patients.
Mrs. Milligan signed both an insurance claim and a treatment consent form as McElveen's wife. Benny Milligan provided Registered Nurse Tara Barber ("Nurse Barber") with "Benny Milligan's" place of employment, insurance company, and health insurance number, but failed to provide her with an insurance card. Milligan and Tamara Milligan and Dr. John Middleton addressed McElveen as "Benny," to which McElveen responded. Dr. Middleton and Nurse Barber assumed they were treating Benny Milligan and were never told otherwise.
Dr. Middleton and Nurse Barber examined McElveen, who was covered with mud and blood on his left side. They placed him on a spine board to immobilize his back and Dr. Middleton stitched a laceration on McElveen's head. X-rays showed a fracture of McElveen's second lumbar vertebra (L-2), and possible fractures of the fourth or fifth thoracic vertebra, and the 12th thoracic vertebra. Because LCH could not treat McElveen's severe back injuries, Dr. Middleton arranged to transfer McElveen to Maury Regional Hospital ("MRH"), located in Columbia, Tennessee.
McElveen was originally admitted through MRH's emergency room, and Tamara Milligan later admitted him through the Admissions office. During an examination, Dr. Kenneth Moore addressed McElveen as "Mr. Milligan," and McElveen responded. Throughout his stay at MRH, McElveen responded to the names "Mr. Milligan" and "Benny." MRH policy admits all patients regardless of insurance status except those desiring elective surgery.
CAT scans taken at MRH revealed an unstable burst fracture threatening the spinal canal and increasing the risk of paralysis. A pulverized vertebra had pushed broken bone against a sac holding spinal fluid. This "burst" fracture of the L-2 vertebra also exploded bone fragments into the surrounding tissue and pinched the spinal canal.
Believing McElveen required spinal surgery outside his expertise, Dr. Moore referred McElveen to Vanderbilt University Medical Center ("VUMC"). Two days later, McElveen was transferred to Vanderbilt.
At VUMC Dr. Dennis Devito ("Devito") examined McElveen. Dr. Devito also addressed McElveen as "Mr. Milligan," and McElveen responded. Dr. Devito discussed treatment options, his recommendations, and the risks of surgery with McElveen. After the discussion, McElveen signed treatment and operative consent forms as "Benny Milligan." VUMC provides uninsured patients the same care it does insured, and, when necessary, will arrange alternative bill payment procedures.
McElveen's surgical procedure involved two surgeons, several assistants, and lasted about six hours. Neurosurgeon Dr. Bennett Blumenkpf removed bone fragments and reconstructed McElveen's spinal cord. Dr. Devito, transplanting bone from McElveen's hip to his lumbar spine, grafted a bony bridge from the L-3 to the L-1 vertebra.
McElveen was hospitalized at VUMC from July 10 to July 20, 1990. During this time, Benny Milligan returned to work at the Martin Marietta plant in Louisiana.
On September 4, 1990, Benny Milligan completed a CIGNA insurance form concerning the medical services provided to McElveen. Milligan reported he fell down a hill, and no other parties were responsible or involved.
On September 17 and 18, 1990, Martin-Marietta received anonymous telephone calls suggesting McElveen posed as Milligan for insurance purposes. At an investigative hearing held September 19, Milligan denied McElveen had used Milligan's insurance number and claimed a mistake had been made. Milligan explained he was mountain climbing with McElveen who fell from a cliff and was taken to a hospital. Milligan stated that in addition to treating McElveen, the hospital bandaged his leg and knee, as he had been "gouged up" while climbing. Milligan stated he presented his medical card only for himself. After the hearing, Milligan was fired.
During a September 20, 1990 conversation with an LCH representative, Milligan stated any LCH bill was not for him because he was not treated at the hospital. He further stated McElveen was treated in the emergency room for shin scrapes with peroxide and a bandage. Milligan claimed the emergency room nurse mistakenly recorded the wrong name. Milligan similarly told a VUMC representative he had not been treated there. Requesting assistance, Milligan told his union representative Jason Hill ("Hill") he was unaware of the reasons behind his Martin-Marietta termination. At Hill's request, Milligan prepared a written statement, which stated he accompanied a friend to Lewis County Hospital. Milligan repeated the same story he had told at the previous hearing, stating he had no idea how someone else had been treated with his insurance card. Martin-Marietta denied the union grievance filed on Milligan's behalf. After learning Benny Milligan worked during the period the insurance company received claims, Connecticut General insurance company, NASA's insurance provider, terminated payment on checks to several medical providers.
On November 27, 1990, Federal Agent Ronald Wilson ("Wilson") interviewed the Milligans. Both signed written waivers of their constitutional rights. Benny Milligan told Wilson that on July 8, he, his wife, and McElveen drank heavily and went to a waterfall. Milligan said he later discovered McElveen missing, and found him at the bottom of the waterfall. Milligan stated he carried McElveen to the car and drove him to a hospital. Milligan denied referring to McElveen as "Benny Milligan" or giving McElveen his medical information. He said a nurse asked him for medical information, but his memory was unclear due to intoxication.
Tamara Milligan stated due to intoxication she remembered nothing about July 8. She later stated she remembered McElveen's fall and transporting him to the hospital. She also told Wilson she signed hospital forms only for her husband's treatment, and denied both referring to McElveen as her husband and visiting the Maury Regional Hospital. Benny Milligan later admitted he lied during the series of inquiries, including those of Martin-Marietta management, Hill and Wilson. Tamara Milligan similarly admitted she lied to Wilson.
On August 14, 1991, a federal grand jury for the Middle District of Tennessee charged Benny Milligan, Tamara Milligan and James McElveen with four counts of mail fraud, one count of wire fraud, and one count of conspiracy. A jury convicted each of the Milligans on all counts, but found McElveen guilty on five counts. The district court sentenced Benny Milligan to nine months incarceration, McElveen to seven months incarceration, and Tamara Milligan to four months of home detention, and ordered all to make restitution of $41,107.75. This timely appeal followed.
Appellants first argue the evidence was insufficient to overcome their defense that it was legally necessary for them to commit conspiracy and mail and wire fraud to avoid greater harm, otherwise known as the "necessity defense." The jury rejected the defendants' necessity defense and convicted them of mail and wire fraud....
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