United States Court of Appeals Fifth Circuit
FILED January 7, 2005 REVISED FEBRUARY 9, 2005 Charles R. Fulbruge III IN THE UNITED STATES COURT OF APPEALS Clerk
FOR THE FIFTH CIRCUIT
__________________________
No. 03-50810 ___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
LORETTA TARANGO,
Defendant-Appellee.
______________________________________
Appeal from the United States District Court for the Western District of Texas _______________________________________
Before DeMOSS, STEWART, and CLEMENT, Circuit Judges.
CARL E. STEWART, Circuit Judge:
The Government appeals from the district court’s order granting Lorretta Tarango’s motion
for a new trial. A jury found Tarango guilty of aiding and abetting her co-defendant, Dipakkumar
Patel, in his efforts to defraud various federal health care pro grams by submitting false billing
statements that failed to comply with the governing provisions of those programs. The Government contends that the district court abused its discretion by granting the motion. We disagree, and for
the reasons set forth below, affirm the district court’s grant of a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
Tarango was charged along with Patel in a two count indictment alleging that they conspired
to defraud the Government by engaging in an intricate health care scheme designed to fraudulently
bill both federally funded health care insurance programs, and private insurers. The indictment
provided that Tarango, while working in her capacity as the office manager for Patel’s medical
practice, intentionally submitted false Health Care Finance Administration (HCFA) 1500 claim forms.1
The indictment alleged that Patel would see between 50 and 100 patients per day for only a nominal
amount of time, but would intentionally submit false claims that he had met with the individual patient
for a much longer period. Apparently, it was not uncommon for Patel to submit a multitude of claims
that, if the HCFA 1500 claim forms were read literally, it would have meant that Patel met with
patients in excess of 24 hours per day. Patel would submit false diagnoses on the HCFA 1500 claim
forms which were provided to health care insurers. Additionally, Patel would often waive deductible
payments as an enticement to have patients return for more unnecessary medical visits.
The indictment alleged that Tarango played a role in facilitating Patel’s fraudulent conduct.
The underlying basis for the indictment stemmed from Patel’s relationship with Prakash Alur, a
supplier of Durable Medical Equipment (DME), including home oxygen units. Under Medicare’s
governing provisions, Alur was prohibited from filling in the applicable contents of HCFA 484 Form,
1 HCFA 1500 claim forms are the standardized forms used when physician claims are submitted to insurance companies.
2 Section B.2 It was alleged that Alur would improperly provide a draft copy of a Section B form to
Tarango who would then transcribe the information onto a new Section B form. Thereafter, Patel
would sign the document, falsely certifying the necessity of medical equipment. The indictment
alleged that Tarango and Patel, along with Alur, fraudulently attempted to receive in excess of 5.3
million dollars by submitting false HCFA 1500 and 484 claim forms to the relevant health care
insurers.
Count One of the indictment charged Tarango and Patel with conspiring to defraud a health
care benefit program in violation of 18 U.S.C. § 371.3 Count Two of the indictment charged Tarango
and Patel with aiding and abetting a scheme to defraud a health care benefit program in violation of
18 U.S.C. §§ 13474 and 2.5
2 HCFA 484 Form, Section B is a form that must be completed by a treating physician before Medicare will provide coverage for home oxygen equipment. The form must not be completed by a supplier of Durable Medical Equipment (DME). The treating phy sician must ultimately provide a Certification of Medical Necessity (CMN) before coverage can be provided.
3 18 U.S.C. § 371 provides in relevant part:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. 4 18 U.S.C. § 1347 provides in relevant part:
Whoever knowingly and willfully executes, or attempts to execute a scheme or artifice –
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program,
3 Tarango and Patel were jointly tried. While he did appear for jury selection, Patel absconded
prior to the trial’s commencement. Moreover, the record reflects that his absence was a major local
news story, in that it was the lead headline for the regional newspaper covering the trial. As it
appeared that Patel would not be present at the trial, the district court gave the jury a limiting
instruction and permitted Patel to be tried in absentia, while Tarango remained present throughout the
entire proceeding. Over the course of the trial, the Government brought forth approximately 50
witnesses who testified principally about Patel’s conduct, with only five witnesses testifying directly
as to Tarango’s complicity in the schemes enumerated in the indictment. The jury eventually returned
a verdict , finding Tarango not guilty on Count One of the indictment (conspiracy), and finding her
guilty on Count Two (aiding and abetting). Tarango’s counsel moved for a new trial, pursuant to
Federal Rule of Criminal Procedure 33,6 on the grounds that she had been prejudiced as a
consequence of being jointly tried with Patel.7 The district court concurred, agreeing that it became
in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury . . . such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in the death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both. 5 18 U.S.C. § 2 provides in relevant part that:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
6 Fed. R. Crim. P. 33 provides in relevant part:
Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interests of justice so requires.
7 Our review of the trial transcript makes clear that the disproportionate weight of the evidence went towards proving that Patel conspired to defraud various federal health care programs. There was little witness testimony that Tarango had engaged in wrongdoing. Much of the testimony actually involving Tarango suggested that she would copy information originally provided to her by someone from Alur’s office. This
4 apparent as the trial progressed that the parties should have been severed and granted the motion for
a new trial.
The district court noted that, even in instances where multiple defendants are properly joined,
a defendant may still be prejudiced by such joinder; and thus, a new trial may be warranted. The
district court observed that much of the evidence and witness testimony focused exclusively on Patel,
even though he was absent. The court was also troubled by the discordant nature of the evidence
against the two defendants, specifically that a limited number of witnesses directly implicated Tarango.
The principal role Tarango played, the Government alleged, was that she would copy information
provided to her onto the HCFA 1500 and 484 claim forms that were eventually submitted to Medicare.
These forms would indicate, for example, that Patel was request ing certain medical equipment for
particular patients, even when such equipment was not medically necessary. The Government’s case
against Patel was so powerful, the court noted, that it was not disputed that Tarango, in her capacity
as office manager, had submitted claim forms that contained fraudulent certifications of medical
necessity. However, the court also noted that the crime of health care fraud is a specific intent crime
and that minimal witness testimony supported the Government’s contention that Tarango was, in fact,
aware that her conduct necessarily constituted fraud.
Much of the evidence regarding Patel’s knowledge of the false diagnoses and improper billing
procedures was based on his medical expertise; this evidence was inadmissible against Tarango. The
district court commented that this case presented circumstances expressly disfavored in a conspiracy
prosecution involving multiple defendants, in that testimony that was allowed to be heard by the jury
information would be transferred by Tarango, for example, onto a new HCFA 484, Section B claim form. Thereafter, Patel would sign the form as a treating physician, attesting to Medicare that a particular patient required DME, such as a home oxygen unit. However, little testimony suggests that Tarango was aware that what she doing was improper.
5 solely as it pertained to Patel was deemed to be probative as to the allegations against Tarango, even
though the testimony was inadmissible against her. In effect, the court found that there was little
evidence that Tarango had knowledge of, or had any specific intent to engage in, the conduct of which
Patel was convicted. Moreover, the court found that the limiting instruction that it gave the jury was
ineffective in insulating Tarango from the prejudicial effect of being joined with Patel.
On appeal, the Government contests the district court’s order granting a new trial, arguing that
the decision constituted an abuse of discretion. The Government contends that a new trial is
inappropriate because there has been no showing that the verdict was the byproduct of any manifest
injustice, and suggests instead t hat the jury’s verdict was consistent with the evidence that was
presented. In its view, Tarango was not prejudiced because Patel had absconded, and there was no
“spillover effect” even if the disproportionate weight of the evidence centered on Patel’s conduct,
rather than anything that Tarango may have done to facilitate the fraudulent health care scheme.
The Government also avers that it will be forced to recall the multitude of witnesses that were
brought forth in the original trial, and that the subsequent trial would likely last another four weeks,
thereby placing an additional financial burden on taxpayers.8 The Government believes that the district
court, by granting the motion for a new trial, ignored testimony indicating that Tarango was cognizant
that she was aiding and abetting a scheme to defraud Medicare. Ultimately, the Government suggests
that Tarango was undone by her own testimony and that the jury’s decision was proper given that
Patel was found not guilty on two separate mail fraud counts, and that Tarango was found not guilty
on the conspiracy count against her. The Government avers that this indicates that the jury was fully
8 We recognize that costs are never an inconsequential consideration in the retrial of a defendant. Nonetheless, it is significant that the Government has never argued, whether in its briefing or during oral argument, that it will have any difficulty securing the presence of the witnesses that will be expected to be recalled at a retrial of Tarango.
6 capable of discerning which evidence was admissible and relevant as to the respective defendant. We
will thus consider whether the district court erred by granting a new trial.
DISCUSSION
A. Standard of Review
We review a district court order granting a motion for a new trial for an abuse of discretion.
See, e.g., United States v. Robertson, 110 F.3d 1113, 1116 (5th Cir. 1997); United States v. Dula,
989 F.2d 772, 778 (5th Cir. 1993); United States v. Arroyo, 805 F.2d 589, 597 (5th Cir. 1986); United
States v. Leal, 781 F.2d 1108, 1110 (5th Cir. 1986).
Granting a motion for a new trial pursuant to Rule 33 is permissible if it is necessitated by the
interests of justice. See Robertson, 110 F.3d at 1117. If granted, the Government would simply have
a second opportunity to try the accused. See generally Miller v. United States, 224 F.2d 561, 562 (5th
Cir. 1955). In determining whether to grant the motion, the district court must carefully “weigh the
evidence and may assess the credibility of the witnesses during its consideration of the motion for new
trial,” Robertson, 110 F.3d at 1117 (citing Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S. Ct. 2211,
2215-16, 72 L. Ed. 2d 652 (1982)), but must not entirely usurp the jury’s function, United States v.
Ferguson, 246 F.3d 129, 134 (2d Cir. 2001), or simply set aside a jury’s verdict because it runs
counter to result the district court believed was more appropriate. See, e.g., Robertson, 110 F.3d at
1118.
Setting aside a jury’s guilty verdict in the interests of justice may be appropriate under
circumstances where the evidence brought forth at trial may tangentially support a guilty verdict, but
in actuality, “preponderates sufficiently heavily against the verdict such that a miscarriage of justice
may have occurred.” United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980). Accord, e.g.,
7 Robertson, 110 F.3d at 1118; United States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988).
Similarly, while vested with discretion to grant a new trial pursuant to Rule 33 if necessary in
accordance with the interests of justice, we have observed that this power should be exercised
infrequently by district courts, unless warranted by “exceptional” circumstances. See United States
v. Scroggins, 379 F.3d 233, 239 (5th Cir. 2004) (citation omitted); see also United States v. Sinclair,
438 F.2d 50, 51 n.1 (5th Cir. 1971).
In our capacity as an appellate court, we must not revisit evidence, reevaluate witness
credibility, or attempt to reconcile seemingly contradictory evidence. See United States v. Dula, 989
F.2d 772, 778-79 (5th Cir. 1993). Instead, we must simply concern ourselves with whether or not the
district court’s ultimate decision in granting or denying the motion for a new trial constituted a clear
abuse of its discretion. Id.
C. Propriety of Joinder and Severance
Federal Rule of Criminal Procedure 8(b) provides that when multiple defendants are alleged
to have participated in the same act or transaction, they may be charged together in the same
indictment. The propriety of joinder will often be assessed by looking to the allegations contained in
the indictment. See United States v. Chagra, 754 F.2d 1186, 1188 (5th Cir. 1985). Moreover, “[t]here
is a preference in the federal system for joint trials of defendants who are indicted together,” Zafiro
v. United States, 506 U.S. 534, 537, 113 S. Ct. 933, 937, 122 L. Ed. 2d 317 (1993), particularly when
a conspiracy charge is involved. United States v. Neal, 27 F.3d 1035, 1045 (5th Cir. 1994).
There may, however, be instances when the joining of offenses or defendants will actually
prove to be prejudicial, and thus, it may be necessary for a district court to “order separate trials of
counts, sever the defendants’ trials, or provide any other relief that justice requires.” Fed. R. Crim. P.
14(a); see also Schaffer v. United States, 362 U.S. 511, 516, 80 S. Ct. 945, 948, 4 L. Ed. 2d
8 921(1960) (observing that “the trial judge has a continuing duty at all stages of the trial to grant a
severance if prejudice does appear”). If a proper initial determination has been made regarding the
propriety of joining defendants, severance is warranted only “if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539, 113 S. Ct. at 938. The granting
or denial of a motion to sever will be reviewed for an abuse of discretion, United States v.
Bieganowski, 313 F.3d 264, 287 (5th Cir. 2002), which, under these circumstances, is an exceedingly
deferential standard. See Neal, 27 F.3d at 1045 n.15 (characterizing overcoming the abuse of
discretion standard as “rigorous” in the context of challenging the denial of a motion to sever).
ANALYSIS
The Government maintains that the district court did in fact abuse its discretion. The
Government challenges the two grounds upon which the district court supported its ruling: (1)
Tarango was prejudiced because Patel was absent from the trial; and (2) the disparity of evidence
against Tarango versus that brought against Patel. The Government notes that Tarango likely was not
prejudiced because of Patel’s absence, and may have in fact benefitted from the presumption that her
failure to flee was suggestive of her innocence.9 Additionally, the Government argues that the district
court provided a cautionary instruction regarding the Government’s responsibility of separately
proving the allegations against Patel and Tarango.10
9 The district court observed that as the trial progressed it became clear the cautionary instructions that had been given to the jury regarding Patel’s intentional flight, i.e., that if proved, this could be weighed by the jury in determining the guilt or innocence of Patel, see generally United States v. Hernandez-Miranda, 601 F.2d 1104, 1107 (9th Cir. 1979) (observing that flight prior to the commencement of trial infers a consciousness of guilt), inadequately shielded Tarango from being prejudiced given that the jury’s attention was “unavoidably” focused on the missing Patel.
10 We find it ironic that the Government seeks to benefit from this instruction on appeal, even though it strenuously objected to the jury receiving the instruction.
9 Similarly, the Government makes much of the fact that Tarango was acquitted of one of the
counts against her. In its estimation, there was simply no showing that she was prejudiced by virtue
of being tried along with Patel.11 The Government believes that the district court failed to give
consideration to the fact that numerous witnesses testified as to the extent of the fraud which occurred
in Patel’s office where Tarango served as the office manager. The Government similarly avers that
a witness testified that he informed Tarango that Patel had double-billed him, and when confronted,
Tarango did nothing to remedy the situation when asked to do so. The Government’s primary
argument is that, at the very least, Tarango was willfully blind to the degree of fraud and graft taking
place in the office, and the verdict by and large was supported by the weight of the evidence.
Our analysis of the trial transcript confirms that Tarango suffered prejudice by being jointly
tried with Patel. In fact, prior to the conclusion of the trial, the district court recognized the problems
inherent in trying the two defendants together.12 We believe that a necessary starting point of course
is some of the evidence that was brought against Tarango. One witness, who formerly worked in
association with Patel, testified that he informed Tarango that he was troubled by the medical office’s
billing procedures -- such as submitting bills for seemingly unnecessary blood tests. Tarango
apparently responded that he would best be served by addressing his concerns directly to Patel. Others
11 This assertion is countered by the district court’s assessment of the profound disparity of evidence that was presented against the respective defendants.
12 The district court expressed, in the context of denying a motion for judgment of acquittal, that given how the trial had progressed he was inclined to grant a new trial:
I will tell you all that I have had a very deep concern that having Ms. Tarango in this case under these circumstances with Dr. Patel gone has worked a substantial prejudice to her that may not be cured at all except by granting a new trial to her at the end of this case . . . [T]here is a really good chance for the first time in my career I would grant a new trial in a case like this because what I consider to be the unique circumstances here with Ms. Tarango sitting here alone having to bear the trauma of a trial when Dr. Patel, her employer, and the person who has I think in the face of overwhelming evidence left the jurisdiction of the Court, I am deeply concerned that as hard as I’ve tried, there could be such prejudice to Ms. Tarango in this case to require a new trial.
10 also testified that Tarango had sole responsibility for the office’s billing procedures and that she had
affixed her signature to billing statements that were sent to insurers, attesting that the medical
information contained therein was accurate – when, in fact, the statements contained fraudulent
information. This, however, has never been controverted, even by Tarango herself. In short, little
evidence was presented to show that Tarango was aware that the medical diagnoses or the requests
for medical equipment contained in the billing statements were false, and thereby could constitute
illegal conduct on her part.13
Our principal concern which compels us to hold that Tarango should be granted a new trial
stems, in large measure, from the clear prejudice that resulted from being tried alongside essentially
an “empty chair,” i.e., Patel’s, towards which the Government’s case was fully centered upon.
Similarly, we are troubled, just as the district court was, by the fact that the jury was permitted to hear
a great deal of evidence that was inadmissible against Tarango. See generally United States v. Delli
Paoli, 352 U.S. 232, 243, 77 S.Ct. 294, 303 (1957) (Frankfurter, J., dissenting) (“The Government
should not have the windfall of having the jury influenced by evidence against a defendant which, as
a matter of law they should not consider but which they cannot put out of their minds.”). Courts have
noted that a defendant may be prejudiced because he was jointly tried alongside an absent co-
defendant. In United States v. Davidson, the Sixth Circuit held that due to the government’s
introduction of evidence that was probative as it pertained to an absent co-defendant, but inadmissible
and prejudicial as to the defendant who remained present throughout the trial, a new trial was
warranted. 936 F.2d 856, 861 (6th Cir. 1991). We believe that Davidson is particularly instructive
as it relates to the exceptional circumstances presented in this matter.
13 We believe that it is also significant, though by no means dispositive, that there has been no demonstration that Tarango received any remuneration because of her involvement in the scheme.
11 We do not mean to imply that because t he preponderance of the evidence relates almost
exclusively to one defendant in a multiple defendant conspiracy trial, the defendant who had
quantitatively and qualitatively less evidence brought against them is presumptively entitled to a new
trial, as a disparity of evidence in a trial involving multiple defendants does not in and of itself
constitute prejudice. See Neal, 27 F.3d at 1045; see also United States v. Rocha, 916 F.2d 219, 229
(5th Cir. 1990). Similarly, Tarango was not prejudiced simply by the fact that her co-defendant was
being tried in absentia. See United States v. Mikolajczyk, 137 F.3d 237, 241-42 (5th Cir. 1998)
(distinguishing Davidson and finding no prejudice to defendant where co-defendant absented himself
a few days after their joint trial had begun); but cf. United States v. Stratton, 649 F.2d 1066, 1083 (5th
Cir. 1981) (noting that in some instances the absence of a co-conspirator can be prejudicial). Indeed,
we are also mindful that when a jury returns a “split” verdict, wherein it finds a defendant guilty as to
some charges but not as to others, there is a presumption that the jury was able to follow the trial
court’s instructions that the evidence was to be weighed against the co-defendants individually. See
Neal, 27 F.3d at 1045.
However, given that there were approximately 50 witnesses who testified at trial–the
disproportionate number of whom testified as to a missing co-defendant, that there was scant
testimony that Tarango did anything improper other than draft the relevant HCFA claim forms as she
was instructed to do by Patel, because the jury was permitted to hear a significant amount of
inadmissible evidence (as it pertained to Tarango), and due to the degree of notoriety attending to
Patel’s absence, we find that the cumulative effect of these factors when viewed in their totality,
strongly weigh against overturning the district court’s determination.
Because Rule 33 is permissive and authorizes the grant of a new trial if the interests of justice
so require, the district court’s opinion evidences the requisite degree of circumspection necessary in
12 this admittedly unusual situation – carefully weighing the federal system’s historic preference for joint
trials of individuals who have been indicted together versus our concomitant concern that a defendant
should not be prejudiced simply for the sake of judicial economy. Moreover, we believe that deference
is owed to the district court. Our perspective only allows us to review the trial’s transcript, whereas
the district court’s vantage point provided it with the opportunity to hear the witnesses and discern
the jurors’ reactions to what they heard and observed. See Arroyo, 805 F.2d at 599. As such, the
district court’s determination that Tarango suffered prejudice requiring that she be granted a new trial
carries considerable weight. See id.; see also United States v. Pedrick, 181 F.3d 1264, 1272 (11th Cir.
1999) (“The district court saw the witnesses, heard all of the evidence, and is in the best position to
evaluate whether [a defendant has] suffered compelling prejudice warranting a new trial.”).
Therefore, for the foregoing reasons, and because the overwhelming nature of the
Government’s case focused exclusively on a conspicuously absent defendant, while demonstrably less
evidence was presented to show that Tarango acted with the specific intent to aid and abet Patel’s
conspiracy to defraud federal health care programs, we hold that the district court did not abuse its
discretion in concluding that the interests of justice warranted granting Tarango a new trial.
CONCLUSION
Accordingly, the district court did not abuse its discretion in granting Tarango’s motion for
a new trial, and the judgment is hereby affirmed.
AFFIRMED.
13 CLEMENT, Circuit Judge, dissenting:
The majority disregards relevant case law and compelling evidence establishing that the district
court abused its discretion in granting Tarango a new trial. A district court should grant severance
to properly joined defendants “only if there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about
guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539 (1993). Joint trials not only promote
judicial economy but serve the interests of justice by “avoiding the scandal and inequity of inconsistent
verdicts” and “enabling more accurate assessment of relative culpability—advantages which somet imes
operate to the defendant’s benefit.” Richardson v. Marsh, 481 U.S. 200, 209–10 (1987); see also
United States v. Causey, 185 F.3d 407, 416 (5th Cir. 1999); United States v. Abner, 825 F.2d 835,
845 (5th Cir. 1985).
The majority concludes that Tarango was prejudiced by the disparity in evidence presented
against the two defendants and Patel’s noticeable absence from trial. Neither reason justifies a new
trial. The majority emphasizes that only five of the fifty witnesses at trial testified directly about
Tarango’s involvement in the health care fraud scheme. Some spillover effect, by itself, does not
warrant severance. United States v. Bieganowski, 313 F.3d 264, 287 (5th Cir. 2002); United States
v. Williams, 809 F.2d 1072, 1085 (5th Cir. 1987). This Co urt has repeatedly held that limiting
instructions are the appropriate remedy to cure prejudice caused by evidence that is admissible against
one codefendant. United States v. Peterson, 244 F.3d 385, 393 (5th Cir. 2001); United States v.
Rocha, 916 F.2d 219, 228–29 (5th Cir. 1990) (holding that “severance is not required merely because
the Government introduced evidence admissible only against individual co-defendants”); United States
v. Merida, 765 F.2d 1205, 1219 (5th Cir. 1985) (asserting that severance is not needed if “the jury
could sort out the evidence reasonably and view each defendant and the evidence relating to that
14 defendant separately”).
Moreover, much of the evidence presented in the joint trial is relevant background to establish
the existence and workings of the fraud scheme. The district court found that only six of the witnesses
gave testimony admissible solely against Patel. The Government convincingly argues that if forced
to retry Tarango, it would have to engage in the costly endeavor of presenting nearly all of the
evidence entered at the joint trial. Severance, “required on the basis of a disparity in the evidence only
in the most extreme cases,” Rocha, 916 F.2d at 229, was inappropriate in this case.
The second rationale behind the majority’s affirmance is equally unpersuasive. In overstating
the effect of Patel’s absence on Tarango’s trial, the majority relies on United States v. Davidson, 936
F.2d 856, 861 (6th Cir. 1991). Davidson, however, is not “particularly instructive,” United States v.
Tarango, __ F.3d __ (5th Cir. 2004), because the defendants’ charges were not sufficiently related:
the defendant tried in absentia was charged with ten co unts, including tax evasion and filing false
income tax returns, which were unrelated to the single narcotics conspiracy charge against Davidson.
Davidson, 936 F.2d at 861. It is undisputed that Tarango and Patel were properly joined as
defendants alleged to have participated in the same act or transaction. FED. R. CRIM. P. 8(b). Neither
Patel’s absence nor the varying amounts of evidence presented satisfy the “required showing of
factually specific and compelling prejudice as a result of the joint trial” with an absent codefendant to
warrant a new trial. Murr v. United States, 200 F.3d 895, 904 (6th Cir. 2000).
The district court is provided a degree of discretion in determining whether to grant a motion
for severance or new trial. Overstating the effect s of the disparity in evidence or Patel’s absence
might not warrant reversing the district court’s opinion. However, clear evidence indicates that
15 Tarango received a fair trial.14
First, the district court issued effective limiting instructions as to both the evidence presented
which was inadmissible against Tarango and Patel’s absence. There is a well-established presumption
that juries are able to follow the court’s instructions and compartmentalize the evidence against each
defendant. Zafiro, 506 U.S. at 540–41; Richardson, 481 U.S. at 211; United States v. Krout, 66 F.3d
1420, 1430 (5th Cir. 1995). Because severance o f properly joined defendants is regarded as a last
resort, “less drast ic measures, such as limiting instructions, often will suffice to cure any risk of
prejudice.” Zafiro, 506 U.S. at 539.
Second, the jury reached a split verdict, acquitting Tarango on the conspiracy charge. If the
disparity in evidence or Patel’s flight “prevent[ed] the jury from making a reliable judgment about
guilt or innocence,” id., the jury would have convicted Tarango on both counts. See Bieganowski,
313 F.3d at 288 (finding that the acquittal of one codefendant on three of five counts and another
codefendant on one count supported the conclusion that the jury properly segregated evidence).
Third, the jury’s verdict is supported by compelling evidence against Tarango. We have
refused to find that a defendant has suffered prejudice from a joint trial when there is sufficient
evidence to convict the defendant. United States v. Griffin, 324 F.3d 330, 364–65 (5th Cir. 2003);
United States v. Broussard, 80 F.3d 1025, 1036–37 (5th Cir. 1996). The majority mischaracterizes
the evidence at trial by stating that “little testimony suggests that Tarango was aware that what she
was doing was improper.” Tarango, __ F.3d at __. As Patel’s office manager, Tarango received
numerous notices of fraudulent billings violations from the state of Texas. Several witnesses
14 Additionally, when a trial judge sets aside a jury verdict and orders a new trial, this Court’s “deference to him is in opposition to the deference due to the jury.” Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982). We therefore engage in a more rigorous review of the district court’s decision to grant rather than deny a motion for a new trial. Id.; Laxton v. Gap Inc., 333 F.3d 572, 586 (5th Cir. 2003).
16 recounted discussing the clinic’s fraudulent practices with Tarango. One of these, Dr. Wasim Sheik
received letters from Tarango warning him not to report his allegations to the authorities. Indeed,
Tarango’s own testimony indicated an intent to defraud the government. She admitted that during a
seven-month period, she billed insurance companies for appointments for more than twenty-four hours
per day, seven days a week. She conceded that there was no testing equipment in Patel’s office to
perform the oxygen level tests indicated on the forms she submitted to the government. She stated
that she did not collect copayments from patients and that she billed an insurance company for visits
by Patel when he was in jail after being indicted.
It is immaterial that witnesses testified that Tarango copied information provided to her by Alur
onto the insurance forms, or that “little evidence was presented to show that Tarango was aware that
the medical diagnoses or the requests for medical equipment contained in the billing statements were
false.” Tarango, __ F.3d at __. “Because it is difficult to prove intent to defraud from direct
evidence, a jury may consider circumstantial evidence of fraudulent intent and draw reasonable
inferences therefrom.” United States v. Bailey, 327 F.3d 1131, 1140 (10th Cir. 2003). The
Government’s evidence, which undeniably established that Tarango was aware that the clinic was
involved in questionable billing practices, provided the jury, at a minimum, compelling circumstantial
evidence to convict Tarango of aiding or abetting a scheme to commit health care fraud.
I respectfully dissent from granting Tarango a new trial.
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