United States v. Anderson

Decision Date15 April 2022
Docket Number3:17-CR-00222-M
PartiesUNITED STATES OF AMERICA, v. TERRY LYNN ANDERSON (1) ROCKY FREELAND ANDERSON (2), Defendants.
CourtU.S. District Court — Northern District of Texas
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR NEW TRIAL

BARBARA M. G. LYNN CHIEF JUDGE

Before the Court is the Motion for New Trial (ECF No. 267), filed by Terry Lynn Anderson and Rocky Freeland Anderson. For the following reasons, the Motion is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendants Terry Lynn Anderson and Rocky Freeland Anderson were each charged with one count of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349; ten counts of health care fraud and aiding and abetting health care fraud in violation of 18 U.S.C. §§ 1347 and 2; and four counts of aggravated identity theft and aiding and abetting aggravated identity theft in violation of 18 U.S.C §§ 1028A and 2. The case involved fraudulently billing Blue Cross Blue Shield of Texas (“BCBS”) for hearing aids. Superseding Indictment (ECF No. 26). On March 8, 2018, a jury convicted Terry Anderson of Counts One - Fifteen, and Rocky Anderson of Counts One - Four, Six, and Eight - Fifteen of the Superseding Indictment. The Court later found there was insufficient evidence to convict the Defendants on Counts One and Eight, acquitted the Defendants of those counts, and entered judgment on the other counts of conviction. The Defendants appealed to the Fifth Circuit, and the Fifth Circuit affirmed the judgment (ECF Nos. 252-53). The Defendants now move for a new trial under Federal Rule of Criminal Procedure 33(b), claiming newly discovered evidence.

II. LEGAL STANDARD

To be entitled to a new trial under Rule 33(b) based on newly discovered evidence, a defendant must prove that “(1) the evidence is newly discovered and was unknown to the defendant at the time of trial; (2) the failure to detect the evidence was not due to a lack of diligence by the defendant; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence if introduced at a new trial would probably produce an acquittal. United States v. Wall, 389 F.3d 457, 467 (5th Cir. 2004). Rule 33(b) requires that a motion for a new trial based on newly discovered evidence be “filed within 3 years after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(1). Motions for a new trial based on new evidence are “disfavored and reviewed with great caution.” United States v. Dickerson, 909 F.3d 118, 125 (5th Cir. 2018).

III. ANALYSIS

The Defendants' Motion for a New Trial is untimely under Rule 33(b)(1), and Defendants have not met the standard of excusable neglect set out in Federal Rule of Criminal Procedure 45(b)(1)(B) to extend a requirement that an act be done within a specified time period.[1]

a. The Motion for a New Trial is Untimely

The Defendants filed this Motion for New Trial on January 11, 2022, three years and ten months after the jury returned its verdict. Thus, the Motion is untimely under Rule 33(b).

The time to file a motion for new trial cannot be extended here, under Rule 45, because Defendants have not shown excusable neglect. Rule 45 permits a court, on its own, or for good cause on a party's motion, to extend the time to file a motion for new trial “after the time expires if the party failed to act because of excusable neglect.” Fed. R. Crim. P. 45(b)(1). Excusable neglect is determined by (1) the danger of prejudice to the nonmoving party; (2) the length of delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. See United States v. Clark, 51 F.3d 42, 44 (5th Cir. 1995) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 394 (1993).

The excusable neglect factors weigh against the Defendants in this case. First, the Government would be prejudiced because a retrial would impose substantial costs of time, money, and prosecutorial resources. The Defendants were charged with committing fraud between 2011 and 2014; in the intervening years, witnesses may have moved or died, and memories likely faded over time. Brecht v. Abrahamson, 507 U.S. 619, 621, (1993). The length of delay would affect a new trial negatively for the same reasons. The Defendants argue that the Government would not be prejudiced by a retrial because the “evidence will be readily available for them, ” and claim the Government has not shown specific prejudice. Mot. at 7. The Government had more than 38 potential witnesses, who testified or were interviewed about events that took place over a decade ago, and at least one of them is now dead. Witness List (ECF No. 74); Resp. at 4 n.2. It is reasonable to assume that the surviving witnesses' memories of the events in issue have diminished and would continue to deteriorate until a new trial occurred. These factors significantly prejudice the Government.

Defendants have not provided a sufficient reason for the delay. They contend they filed the Motion late because newly discovered evidence became available only recently. As discussed further below, that purported evidence would not be admissible. The Defendants state that they acted in good faith, but do not demonstrate that they did so, and the other factors weigh heavily against them. Thus, the Court finds the Motion untimely, and that Defendants have not shown excusable neglect that would justify a Rule 45 extension.

b. The Motion Fails on the Merits

Even if the Court reached the merits, the Motion would be denied. The Defendants were convicted of health care fraud for submitting insurance claims for hearing aids that were medically unnecessary and for which Defendants did not conduct the requisite examinations. See Verdicts (ECF Nos. 99-100); Superseding Indictment ¶ 15. The Defendants contend that two pieces of information constitute newly discovered evidence that, if admitted, would result in an acquittal: first, they cite the end, in January 2022, of a DOJ criminal investigation into the hearing aid company, Eargo, Inc.; and second, they reference an FDA rule proposed in October 2021, that would permit some hearing aids to be sold over-the-counter, without requiring an examination by a professional. Mot. Exs. A, B. None of this information is relevant to the Defendants' convictions, would not be admitted at trial, would not require Brady/Giglio production, and thus, would not “probably produce an acquittal.” Wall, 389 F.3d at 467.

The unrelated investigation into Eargo is not new evidence that would entitle Defendants to a new trial. Defendants attach to the Motion several news articles reporting that Eargo announced in an SEC filing in 2021 that it was the target of a DOJ investigation into insurance reimbursement claims it had submitted on behalf of its customers, stating in 2022 that DOJ had...

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