United States v. Anastacia Maclin ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-2158
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANASTACIA V. MACLIN,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:16-cr-00179-PPS-JEM-1 — Philip P. Simon, Judge.
ARGUED DECEMBER 4, 2018 — DECIDED FEBRUARY 7, 2019
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 sen-
tenced 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 (“Prospec-
2 No. 18-2158
tive 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 in-
formed 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
No. 18-2158 3
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 “plan-
ning 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 prejudi-
cial 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,
4 No. 18-2158
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 sympa-
thy 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
No. 18-2158 5
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 enhance-
ment 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)).
6 No. 18-2158
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 question each impaneled
juror regarding their ability to be impartial given the nature of
the statement and the clear jury instructions given prior to trial
and after the closing arguments.
No. 18-2158 7
As to the vulnerable victim enhancement, the court found
that Dr. Khan was financially and technologically unsophisti-
cated. This made her particularly vulnerable to Maclin’s
scheme to use the electronic Medicaid billing system to divert
funds to her own personal account. Maclin argues that the
record does not support the district court’s conclusion that
Dr. Khan was financially unsophisticated, and that Dr. Khan
was able to overcome any technological illiteracy by meeting
with people at her bank directly. Maclin relies heavily on
United States v. Esterman, 324 F.3d 565, 573–74 (7th Cir. 2003).
There, this court found it was a clear error to apply a vulnera-
ble victim enhancement based solely on a victim’s limited
English proficiency, where the victim was financially sophisti-
cated and monitored his finances through interpreters.
A vulnerable victim is defined by the Guidelines as
“someone who is unusually vulnerable due to age, physical or
mental condition, or who is otherwise particularly susceptible
to the criminal conduct.” U.S.S.G. § 3A1.1. We review the
district court’s application of the vulnerable victim enhance-
ment for clear error. Whether a victim is vulnerable “is the type
of fact which the trial court is uniquely well-positioned to
assess because the trial judge can observe the demeanor of the
defendant and witnesses and has an opportunity to review and
analyze each of the documents and exhibits and hear the
testimony while observing the mental, physical, and emotional
states of the victims in order to assist him with assessing the
damages inflicted upon them.” United States v. Christiansen, 594
F.3d 571, 574 (7th Cir. 2010)(internal citations omitted). There
must be “some link between the vulnerability and the charac-
teristic in question.” United States v. Lewis, 842 F.3d 467, 476
8 No. 18-2158
(7th Cir. 2016) (vulnerable victim enhancement warranted
where defendant abused trust of victims who “lacked basic
computer skills”); see also United States v. Sullivan, 765 F.3d
712, 717 (7th Cir. 2014) (evidence supported enhancement
because it showed the defendants targeted victims who were
elderly and financially unsophisticated); United States v. Parolin,
239 F.3d 922 (7th Cir. 2001) (vulnerable victim enhancement
appropriate due to defendant’s knowledge of victims’ lack of
financial sophistication).
The district court found that Dr. Khan was remarkably
computer illiterate. She did not “do e-mail” and her attempts
to access computer systems routinely resulted in failure
because she inadvertently triggered security mechanisms. The
court noted that Dr. Khan “totally entrusted this to Ms. Maclin,
the operation of the financial side of her business, and
Ms. Maclin knew that.” Maclin used that knowledge to
defraud Dr. Khan using the electronic billing system. The
district court noted that Dr. Khan was intelligent, and that it
was a “close call” but concluded that “literally—in 15 years, I
have never seen somebody so technologically unsophisticated
as this victim to the point where she literally has never
used e-mail even. She doesn’t have the ability to check her
accounts.”
This Court held in Esterman that it was clear error by the
district court to “consider[] “the linguistic factor in isolation.”
Esterman, 324 F.3d at 573–74. Esterman argued that the district
court improperly ignored the victim’s “sophistication as a
businessperson, his ability to communicate with the bank
through an interpreter, his ability to dispatch deputies, and his
familiarity with the legal system as evidenced by his filing of
No. 18-2158 9
criminal and civil complaints.” Id. Unlike in Esterman, the
district court here considered the mitigating factor that
Dr. Khan was generally an intelligent person, but found she
was so technologically illiterate that it made her particularly
vulnerable to electronic billing fraud. While Dr. Khan could
meet in person at the bank to go over her accounts, had she
been able to check her accounts electronically she would have
discovered the fraud much sooner.
Additionally, the district court noted the 15-month sentence
was within Guidelines range whether or not the vulnerable
victim enhancement was applied, and declared 15 months
would be the sentence “irrespective of how that decision fell
out.” The court stated that the enhancement “wouldn’t have
changed my judgment on the case one way or the other”
because “15 months captures about correctly the gravity of the
case” considering Maclin stole a substantial sum of money
from Dr. Khan while still paying restitution for an almost
identical crime.
“A district court facing a tricky but technical issue under
the Guidelines may exercise its discretion under section 3553(a)
and may spell out on the record whether and to what extent
the resolution of the guideline issue affected the court's final
decision on the sentence.” United States v. Snyder, 865 F.3d 490,
500 (7th Cir. 2017) (citing United States v. Lopez, 634 F.3d 948,
954 (7th Cir. 2011)); see, e.g., United States v. Sanner, 565 F.3d
400, 406 (7th Cir. 2009) (affirming an above-guideline sentence
without regard for the correct resolution of guideline issue);
United States v. Abbas, 560 F.3d 660, 666–67 (7th Cir. 2009)
(holding a guideline error was harmless based on judge's
explanation of alternative basis for same sentence). We find no
10 No. 18-2158
error in the district court’s application of the vulnerable victim
enhancement and, regardless, any error would have been
harmless.
III. CONCLUSION
The district court’s denial of the motions for mistrial, and
the district court’s sentencing, are hereby AFFIRMED.