United States v. Thomas

• Decision Date: 01 August 2013
• Docket Number: No. 12–60707.,12–60707.
• Citation: 724 F.3d 632
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Cassandra Faye THOMAS, Defendant–Appellant.

724 F.3d 632

UNITED STATES of America, Plaintiff–Appellee,

v.Cassandra Faye THOMAS, Defendant–Appellant.

No. 12–60707.

United States Court of Appeals, Fifth Circuit.

Aug. 1, 2013.

Gaines H. Cleveland, Assistant U.S. Attorney, U.S. Attorney's Office, Gulfport, Jason Scott Gilbert, Assistant U.S. Attorney, U.S. Attorney's Office, Jackson, MS, David M. Blank, U.S. Department of Justice, Office of Counsel to the Inspector General, Washington, DC, for Plaintiff–Appellee.

Robert Lewis Gibbs, Esq., Vikki J. Taylor, Esq., Attorney, Gibbs Whitwell, P.L.L.C., Jackson, Karen Elaine Livingston–Wilson, Ridgeland, MS, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Mississippi.

Before OWEN and HAYNES, Circuit Judges and LEMELLE, District Judge. ^*

IVAN L.R. LEMELLE, District Judge:

Dr. Cassandra Thomas (“Thomas”) is a licensed physician in the state of Mississippi who operated Central Mississippi Physical Medicine (“CMPM”), an in-home physical therapy services provider for Medicare patients, from 2002 through 2005. While operating CMPM, Thomas falsely billed Medicare and Medicaid programs for medically unreasonable and unnecessary physical therapy services, failed to directly supervise the administration of the physical therapy, and hired unlicensed personnel to administer the physical therapy. Thomas sent employees with little to no medical background to the homes of elderly Medicare patients to provide “physical therapy services.” These non-medical employees traveled to the homes alone, without Thomas' supervision, despite the fact that none was ever licensed as a physical therapist or physical therapist assistant. Thomas then billed these services to Medicare at skilled medical professional rates, while the employees themselves were paid on average just over $11 an hour. Thomas also routinely waived the 20% co-payment she was required to collect from Medicare patients. Thomas also inflated the amount of hours she billed Medicare, billing for several hours a day of services when the employees only spent about an hour with each patient. At the time CMPM ultimately closed, it retained $2.3 million in proceeds in its accounts, which was seized by the Department of Justice.

On December 2, 2008, Thomas was indicted with ten counts of healthcare and Medicare fraud arising from her operation of CMPM, including violation of the Health Care Fraud statute, Wire Fraud statute, and fraudulent billing of Medicaid. At trial, Thomas was represented by Joyce and Tom Freeland. Tom Freeland was charged with misdemeanor conduct in Oxford, Mississippi, shortly before Thomas' trial began, but continued to represent Thomas during trial. Potential jurors were not questioned regarding knowledge of Tom Freeland's misdemeanor charge. Thomas was present throughout the trial, including voir dire, except for an in-chambers conference where the attorneys exercised peremptory challenges and challenges for cause. Thomas was present in the courtroom when the district judge announced an in-chambers conference with attorneys. Thomas remained in the courtroom while the in-chambers conference took place. Thomas had an opportunity to confer with her attorney during a recess between voir dire and the in-chambers conference. Thomas told her trial counsel she wanted “at least one African American male on the jury,” prior to the in-chambers conference. During the in-chambers conference, the district court first considered challenges for cause and granted the Government's challenge to Juror No. 19, an African–American male who appeared to be sleeping at times during voir dire. Thomas' counsel conceded “he's been napping.” Among the jurors that Thomas' counsel accepted at the in-chambers conference was Juror No. 17, whom Thomas later claimed she would have challenged because the juror had previously worked with federal authorities to investigate mail theft, and Thomas felt he would be biased against her as a result. After all counsel had exercised their strikes, the district judge asked if either side had any objections to the jury or selection process, and none was raised. While in chambers, the judge read the names of the jurors into the record, and had a court security officer seat the jurors in the jury box before court recessed for lunch. After lunch, the jury panel was sworn in and the jurors were given preliminary instructions for the trial, during which Thomas was present in the courtroom. Thomas had an opportunity to consult with her trial counsel both before and after lunch, prior to the panel being sworn in, and raised no objections or concerns about the jury selection process or in-chambers conference. Thomas was also absent from subsequent in-chambers meetings between the judge and particular jurors regarding possible juror intimidation, juror's outside interaction with acquaintances of the defendant, and a note from a juror.

On April 8, 2011, following a week-long trial, a jury convicted Thomas of all ten counts. Thomas was sentenced to 168 months in prison, followed by three years of supervised release, and ordered to pay over $6.9 million in restitution, in addition to a $1000 special assessment fee. Following her conviction, Thomas hired new counsel who moved for new trial, arguing ineffective assistance of counsel, including failure to advise her of her right to be present at the in-chambers conferences regarding jurors. The district court conducted an evidentiary hearing on the motion for new trial and ineffective assistance of counsel claim, at which Tom Freeland testified that he had advised Thomas of her right to be present. The district court denied Thomas' new trial motion, finding that although she had not waived her right to be present, her absence from certain stages of the trial did not substantially affect her right to a fair trial or render her counsel ineffective.

Thomas now appeals her conviction.¹ On appeal, Thomas raises four issues. First, Thomas argues that the district court erred in failing to apply the rule of lenity to dismiss the indictment against her at the pretrial phase. Second, Thomas argues that the district court erred by denying her motion in limine to exclude evidence regarding Mississippi physical therapy licensing requirements as irrelevant, as well as by deciding to exclude an article which discussed the ambiguity of the Medicare regulations, and changes to Medicare regulations which occurred after 2005. Third, Thomas argues that the district court erred by denying her constitutional right to be present at all critical stages of her trial. And lastly, Thomas argues that the district court erred in denying the motion for new trial based on ineffective assistance of trial counsel.

We affirm the conviction for reasons below.

I. Challenge to the indictment

Thomas' argument challenging the district court's denial of her motion to dismiss indictment is reviewed de novo. United States v. Fontenot, 665 F.3d 640, 644 (5th Cir.2011). “In reviewing a challenge to an indictment alleging that it fails to state an offense, the court is required to take the allegations of the indictment as true and to determine whether an offense has been stated.” Fontenot, 665 F.3d at 644, quoting United States v. Crow, 164 F.3d 229, 234 (5th cir.1999). Thomas argues that all counts against her failed to meet this standard because the indictment was based on violations of Medicare regulations that were ambiguous or unclear at the time CMPM was in operation. Specifically, Thomas argues that her failure to use licensed physical therapists and failure to directly supervise the services provided were not clearly prohibited by Medicare regulations. This Circuit addressed a similar argument in United States v. Jones, 664 F.3d 966 (5th Cir.2011).²

In Jones, the defendants challenged their convictions for theft of government funds under 18 U.S.C. § 641. 664 F.3d at 976. As in the instant case, the defendants in Jones operated a “physical rehabilitation provider for Medicare patients.” Id. at 971. The Government “alleged that the [defendants] knowingly billed for services they knew were rendered improperly and/or for which they overbilled.” Id. at 976, (emphasis added). Specifically, the Government alleged that the defendants used unlicensed service providers and billed by the area of the body treated, rather than by time. Id. at 977. The Jones defendants claimed they did not “knowingly” render services improperly, because the Medicare regulations governing use of unlicensed providers were ambiguous. Id. at 977. This Court acknowledged some ambiguity in the Medicare regulations involving use of unlicensed service providers and requirement of direct supervision by a physician, but found that where the Government alleged other facts as to improper billing, it was sufficient to support the conviction. Id. at 977.

Thomas attempts to distinguish the instant case from Jones, by arguing that unlike in Jones, the Government relied solely on Thomas' use of unlicensed physicians and failure to directly supervise to support the counts in the indictment. However, Thomas' argument is without merit. As in Jones, even excluding the facts alleging use of unsupervised, unlicensed service providers, sufficient independent facts existed to clearly state an offense in the indictment—namely, the factual allegation that Thomas knew the physical therapy services were medically unreasonable and unnecessary under Medicare guidelines. Accepting the allegations in the indictment as true, the district court properly recognized this independent factual basis, mooting the need to address Thomas' “rule of lenity/ambiguity” challenge to the other facts underlying her conviction. Accordingly, we affirm the district court's denial of Thomas' motion to dismiss the indictment.

II. Admission of Evidence

Thomas' challenge to the district court's denial of her motion in limine is reviewed for plain error because she...