United States v. Lundahl ( 2022 )

Appellate Case: 21-8061 Document: 010110679614 Date Filed: 05/04/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 4, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-8061
(D.C. No. 1:20-CR-00048-NDF-1)
HOLLI TELFORD LUNDAHL, a/k/a (D. Wyo.)
Holli Lundahl, a/k/a Holli Telford, a/k/a
Hollie Lundahl, a/k/a Hollie Telford, a/k/a
Holly Lundell,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, KELLY, and CARSON, Circuit Judges.
_________________________________
Defendant-Appellant Holli Lundahl was convicted of three counts of
healthcare fraud in violation of 18 U.S.C. § 1347 and two counts of aggravated
identity theft in violation of 18 U.S.C. § 1028A and sentenced to thirty-six months in
prison. She then filed this pro se appeal. Exercising jurisdiction pursuant to
28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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I. Background
Ms. Lundahl’s sister, Marti, was a Wyoming Medicaid beneficiary who
received participant-directed in-home services through the state’s home and
community-based services (HCBS) waiver program called Community Choices
Waiver (CCW).1 The participant-directed option allows participants to employ a
direct service worker (DSW) who Medicaid then pays. At trial, the government
presented evidence that showed Ms. Lundahl defrauded Wyoming Medicaid by
submitting false statements about Marti’s CCW services.
The evidence at trial showed that Ms. Lundahl enrolled her niece, Shyanne, as
Marti’s DSW without Shyanne’s knowledge or consent. Ms. Lundahl then submitted
timesheets in Shyanne’s name as if Shyanne had worked for Marti when she had not.
Ms. Lundahl then took the resulting wage payments for her own use.
The evidence also showed that Ms. Lundahl later advertised for a caregiver for
Marti. She then pretended to hire Sara Brown to obtain her identifying information.
Ms. Lundahl did not have Sara provide any Medicaid-reimbursed DSW services for
Marti, but Ms. Lundahl still submitted timesheets in Sara’s name as if Sara worked
1
“Under the Medicaid Act, a participating state may ask the Secretary of
Health and Human Services to provide a waiver allowing the state to pay for [HCBS]
as medical assistance under its approved Medicaid plan.” Lewis v. New Mexico
Dep’t of Health, 261 F.3d 970, 974 (10th Cir. 2001) (internal quotation marks
omitted). HCBS may be provided to individuals who would otherwise be
institutionalized in a hospital, nursing facility, or intermediate care facility for the
intellectually disabled. CCW is Wyoming Medicaid’s approved HCBS waiver
program, which was developed to allow individuals who require nursing-home-level
care to remain in the community.
2
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for Marti. She did this without Sara’s knowledge or consent. Again, Ms. Lundahl
took the resulting wage payments for her own use.
Finally, the evidence showed that Ms. Lundahl later enrolled as Marti’s DSW
and submitted timesheets using her own name. In doing so, Ms. Lundahl asserted on
the enrollment form that she did not have a power of attorney for Marti when in fact
she did. If Ms. Lundahl had truthfully reported the power of attorney, she would not
have been qualified to receive Medicaid money as a DSW for Marti.
Ms. Lundahl represented herself at trial with the assistance of stand-by
counsel. After a six-day jury trial, she was convicted on three counts of healthcare
fraud and two counts of aggravated identity theft. She then filed a notice of appeal.
As part of the instructions on how to proceed in her appeal, this court notified
Ms. Lundahl that she must file an opening brief within forty days from the date of the
letter. The letter also instructed Ms. Lundahl that she could use the Pro Se Brief
form or file a separate brief.
Ms. Lundahl subsequently filed a motion to stay all proceedings and a separate
document titled “Appellant/Defendant’s Verified Fourth Motion to Dismiss/Acquit
Multiplicious [sic] Charges Counts 1-3 of the Indictment Charging a Single Scheme
of Health Care Fraud, Based on Eleven (11) Jurisdictional and/or Acquittal
Grounds.” This court entered an order construing the motion to stay as a motion to
abate the appeal and denied it. This court also informed Ms. Lundahl that her motion
to dismiss was not a proper motion for summary disposition under Tenth Circuit Rule
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27.3 and that it would be deemed to be her opening brief if she did not file an
opening brief by the deadline.
Ms. Lundahl did not file an opening brief by the deadline (or at any time after
the deadline). As a result, this court construed her motion to dismiss as her opening
brief and filed it as such. The government filed a response brief. Ms. Lundahl did
not file a reply brief.
II. Discussion
“Although a pro se litigant’s pleadings are to be construed liberally and held to
a less stringent standard than formal pleadings drafted by lawyers, this court has
repeatedly insisted that pro se parties follow the same rules of procedure that govern
other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005) (brackets and internal quotation marks omitted). Ms. Lundahl was
given the opportunity to file an opening brief, but she instead chose to let her motion
to dismiss be filed as her opening brief. Her pro se brief fails to comply with
Federal Rule of Appellate Procedure 28 and Tenth Circuit Rule 28, and the
deficiencies in her brief preclude appellate review.
A. Issues Not Raised in District Court
The government contends that eight of the eleven issues Ms. Lundahl raises in
her opening brief were not raised in district court and are therefore subject to review
for plain error (issues I-VI, VIII and IX). “When a party fails to raise an argument
below, we typically treat the argument as forfeited” and “we will reverse only if the
appellant can satisfy our rigorous plain-error test.” United States v. Leffler, 942 F.3d
4
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1192, 1196 (10th Cir. 2019). “To avoid us treating a claim as forfeited or waived, an
appellant’s opening brief must ‘cite the precise references in the record where the
issue was raised and ruled on’ in the district court.’” Id. (quoting 10th Cir.
R. 28.1(A)). Ms. Lundahl’s brief does not comply with Tenth Circuit Rule 28.1(A)
because it contains no references to the record where she raised any of the eight
issues the government identifies, so “we may assume [she] did not preserve the[se]
issue[s] for appeal,” Leffler, 942 F.3d at 1196.
Ms. Lundahl’s brief also fails to argue how these eight issues satisfy the
plain-error standard. “When an appellant fails to preserve an issue and also fails to
make a plain-error argument on appeal, we ordinarily deem the issue waived (rather
than merely forfeited) and decline to review the issue at all—for plain error or
otherwise.” Id.
Although it remains an open question, we have suggested that we might
consider an argument for plain error that was not raised in an opening brief but was
raised in a reply brief. See United States v. Zander, 794 F.3d 1220, 1232 n.5
(10th Cir. 2015); see also United States v. Courtney, 816 F.3d 681, 683-84
(10th Cir. 2016) (considering a criminal defendant’s argument for plain error that
was raised for the first time in his reply brief). But that possibility does not help
Ms. Lundahl. She did not avail herself of the opportunity to file a reply brief to
respond to the government’s contention that these issues were not preserved or to
address whether these issues could satisfy the plain-error standard. Accordingly, we
decline to review the eight issues the government identifies (issues I-VI, VIII, and
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IX) because they were not raised in district court and Ms. Lundahl has not shown
how these issues satisfy the plain-error standard.
B. Inadequate Briefing
Rule 28 of the Federal Rules of Appellate Procedure requires an appellant’s
opening brief to include: “appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies.”
Fed. R. App. P. 28(a)(8)(A). And we have explained that “[i]ssues will be deemed
waived if they are not adequately briefed.” Garrett, 425 F.3d at 841 (internal
quotation marks omitted). Ms. Lundahl has failed to adequately brief her remaining
three issues.2
For issue VII, she asserts that the government “altered and doctored the grand
jury record,” Aplt. Opening Br. at 26, and engaged in other misconduct. In thirteen
pages of argument, Ms. Lundahl includes only one record citation, see id. at 38
(citing Doc. 201). Document 201 is a motion to dismiss that she filed but she gives
no pinpoint page citations to evidence in that document; her citation simply states
“[a]lso see Doc. 201.” Id. This lone citation, without more, is wholly inadequate to
support her assertion of government misconduct.3
2
We note that Ms. Lundahl cites documents 342 and 343 in her discussion of
these three issues, but those documents are not part of the record on appeal. She filed
those documents in district court after she filed her notice of appeal and the district
court struck them.
3
We also note that, during trial, the district court concluded that
Ms. Lundahl’s accusations concerning government misconduct and fabrication of
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For issue X, Ms. Lundahl argues that criminal estoppel bars the prosecution
and jury verdict because she “was denied the right at trial, to either testify about
numerous laws she relied upon . . . , or to submit any of these laws to the jury.” Id. at
46. And for issue XI, she contends that “Wyoming Medicaid suffered no ‘purchasing
injury’ because [she] performed 4 to 6 times more in daily hourly services than
reimbursed by Medicaid, thus no corpus delicti injury.” Id. at 47. But she fails to
cite to any part of the record to support these arguments.
Absent citations to the record in a party’s brief, the court “will not sift through
the record to find support for” an argument. Phillips v. James, 422 F.3d 1075, 1081
(10th Cir. 2005). Even when affording pro se pleadings a liberal construction, we
“cannot take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Garrett, 425 F.3d at 840. We conclude that
Ms. Lundahl’s pleading deficiencies disentitle her to appellate review of her
remaining three issues (issues VII, X, and XI).
III. Conclusion
We affirm the district court’s judgment.
Entered for the Court
Joel M. Carson III
Circuit Judge
evidence were “unfounded,” R., Vol. IV at 868, and when asked, standby counsel
stated that he saw no evidence of government misconduct, id. at 868-69.
7