United States v. Maclin

• Decision Date: 07 February 2019
• Docket Number: No. 18-2158,18-2158
• Citation: 915 F.3d 440
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anastacia V. MACLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

915 F.3d 440

UNITED STATES of America, Plaintiff-Appellee,

v.Anastacia V. MACLIN, Defendant-Appellant.

No. 18-2158

United States Court of Appeals, Seventh Circuit.

Argued December 4, 2018

Decided February 7, 2019

Nathaniel Whalen, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Hammond, IN, for Plaintiff-Appellee.

Michael L. McCluggage, I, Attorney, Gregory Schweizer, Attorney, EIMER STAHL LLP, Chicago, IL, for Defendant-Appellant.

Before Bauer, Kanne, and Brennan, Circuit Judges.

Bauer, Circuit Judge.

After a jury found Anastacia Vann Maclin guilty of two counts of Medicaid theft she was sentenced to 15 months’ imprisonment. Maclin embezzled funds from Dr. Farzana Khan’s medical practice after being hired to handle its electronic billing. Maclin raises two issues on appeal. First, is whether a comment by a prospective juror ("Prospective Juror No. 11") that Dr. Khan had a "home for autism" required voir dire to be restarted with a new jury panel. Second, is whether the district court properly applied a vulnerable victim sentence enhancement based on Dr. Khan’s computer illiteracy. For the following reasons, we affirm.

I. BACKGROUND

In January 2015, Dr. Khan hired Maclin to handle the business side of Khan’s medical practice, Iliana Psychiatric Associates ("Iliana"). In April 2015, Maclin used Dr. Khan’s username and password to log into the Medicaid system to redirect Iliana’s Medicaid reimbursements from Dr. Khan’s Chase business account to Maclin’s personal account at Centier Bank, and changed the reimbursement method from paper checks to electronic fund transfers. Maclin also enrolled Iliana in Medicaid’s electronic incentive program, against the wishes of Dr. Khan and without her knowledge, and caused a one-time bonus of $ 21,250 intended for healthcare providers who digitized their paperwork to be deposited in Maclin’s personal account. In total, more than $ 80,000 was deposited into Maclin’s account from April 2015 through July 2016.

Iliana’s tax preparer noticed the missing funds and informed Dr. Khan. With the help of another employee, Angela Ruiz, Dr. Khan reached out to Medicaid to investigate. Since the user information had been changed, it took Dr. Khan and Ruiz several days to unlock the Medicaid account and discover that the money had been diverted to Maclin’s personal account. Dr. Khan fired Maclin and filed a police report. A grand jury returned a two-count indictment against Maclin for stealing Medicaid reimbursements and the incentive check in violation of 18 U.S.C. § 669.

Before trial, Maclin filed a motion in limine to preclude the government, or any of its witnesses, from mentioning that Dr. Khan had an adult child with severe autism. The district court granted the motion in part, and directed the government to "sanitize" Dr. Khan’s family circumstances to avoid drawing particular attention to her autistic son.

During voir dire prospective jurors were asked whether they knew any of the witnesses. The witness list included Dr. Khan but did not indicate she was the victim in the case. Ten jurors were chosen after each declared under oath that they could be impartial and decide the case on the evidence presented. Prospective Juror No. 11 stated that she knew Dr. Khan because she worked as the administrator of "planning and building" in Schererville. Prospective Juror No. 11 stated that she "worked with [Dr. Khan] on developing her property. She has a home for autism." Prospective Juror No. 11 was excused from the jury because she knew Dr. Khan. Two more jurors were selected; both swore they could be impartial.

At the end of voir dire, Maclin filed a motion for a mistrial. Maclin sought to restart voir dire with a new jury panel, arguing that Prospective Juror No. 11's statement was prejudicial in light of the ruling on the motion in limine . The district court denied the motion and offered a curative instruction, which Maclin’s defense counsel declined.

Prior to the trial the jury was instructed that their "first duty is to decide the facts from the evidence that you see and hear here in court" without letting "sympathy, prejudice, fear, or public opinion influence you in any way." The court told the jury to base their verdict "exclusively on the law as I give it to you and the evidence that was presented in the courtroom." The court gave similar instructions to the jury a second time, after closing arguments, stating that "evidence includes only what the witnesses said when they were testifying under oath, the exhibits that I allowed into evidence, and the stipulations that the lawyers agreed to.... Nothing else is evidence."

The jury found Maclin guilty of both counts. Maclin again moved for a mistrial, making the same arguments as her earlier motion. The district court denied the motion concluding that "the fleeting remark, with little in the way of context or explanation, could not possibly have had created such sympathy for Dr. Kahn as to have a prejudicial effect on the jury's verdict finding Maclin guilty." United States v. Maclin , 2017 U.S. Dist. LEXIS 208125, at *4 (N.D. Ind. Dec. 19, 2017).

The Presentence Report recommended Maclin receive a two-level sentencing enhancement because Dr. Khan was a "vulnerable victim" on the basis of her computer illiteracy. At the sentencing hearing Dr. Khan testified that she did not understand how to use a computer, did not bank electronically, did not send her own e-mails, and did not even use ATMs. Dr. Khan further testified that Maclin knew of her complete inability to use computers. Maclin objected to the enhancement arguing that Dr. Khan was not vulnerable.

The district court overruled the objection and applied the enhancement. The district court stated it had never seen anyone as technologically unsophisticated as Dr. Khan, and concluded that this made her especially vulnerable to Maclin’s computer-based theft scheme. The court noted that the enhancement resulted in an advisory sentence of 15 to 21 months, which overlapped with the 10 to 16 month range that would have been recommended without the enhancement. The court found that Maclin had preyed on Dr. Khan and showed no contrition. The court also considered the fact that Maclin was still paying restitution for a prior offense where she did "basically, the same thing to another physician." The court imposed a 15-month sentence, noting that the sentence would have been the same without the vulnerable victim enhancement because "15 months captures about correctly the gravity of the case."

II. ANALYSIS

Rule 33 authorizes the court to "vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33. The applicable standard under Rule 33 requires a new trial "only if there is a reasonable possibility that the trial error had a prejudicial effect on the jury's verdict." United States v. Flournoy , 842 F.3d 524, 530 (7th Cir. 2016). We review the district court’s decision to deny motions for a mistrial and motions for a new trial for abuses of discretion. See United States v. Lawrence , 788 F.3d 234, 243 (7th Cir. 2015) ; Flournoy , 842 F.3d at 528. "Each case must turn on its special facts, and in each case the crucial factor is the degree and pervasiveness of the prejudicial influence possibly resulting from the jury's exposure to the extraneous material." United States v. Wiesner , 789 F.2d 1264, 1269 (7th Cir. 1986) (citing United States v. Weisman , 736 F.2d 421, 424 (7th Cir. 1984) ).

Maclin relies extensively on Mach v. Stewart , 137 F.3d 630 (9th Cir. 1998). In Mach , the defendant was on trial for sexually abusing a child. Id. at 631–32. The potential juror, a social worker, stated that every time her clients alleged sexual assault, the allegations were later confirmed to be true. Id. at 632. The juror repeated the statement several times, and also stated that she had taken psychology courses and worked closely with psychologists and psychiatrists. Id. The Ninth Circuit reversed the verdict based on the "nature of [the] statements, the certainty with which they were delivered, the years of experience that led to them, and the number of times that they were repeated" and presumed "that at least one juror was tainted and entered into jury deliberations with the conviction that children simply never lie about being sexually abused." Id. at 633.

This case could not be more different than Mach . Prospective Juror No. 11 provided a vague factual statement about Dr. Khan, not an opinion about the trustworthiness of any witness. Prospective Juror No. 11's statement did not implicate Maclin’s guilt and was entirely unrelated to the crimes Maclin was charged with. The statement was neither material to an issue in the case, nor was it inflammatory in any way. It is implausible that the statement could have had a prejudicial effect on the jury’s verdict. The district court was not required under these circumstances to empanel a new venire. It was also not required to...