United States v. Theresa Phillips ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1262
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
T HERESA P HILLIPS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:03-cr-01063-1—Blanche M. Manning, Judge.
A RGUED F EBRUARY 8, 2010—D ECIDED F EBRUARY 25, 2010
Before B AUER, E VANS and T INDER, Circuit Judges.
B AUER, Circuit Judge. Theresa Phillips appeals her
conviction for defrauding the Medicare program, in
violation of 18 U.S.C. §§ 2 and 1347. She claims that
the district court erred by admitting a redacted audio
recording of her conversation with undercover investi-
gators after the government failed to provide her an
unredacted version. She further claims that the district
court erred by admitting evidence related to certain
2 No. 09-1262
documents produced so close to trial that her attorney
had no meaningful opportunity to examine them. We
have reviewed the district court’s evidentiary rulings.
Finding no error, we affirm.
I. BACKGROUND
Theresa Phillips and her company, Health Care Cre-
ations, defrauded the Medicare program by billing it for
services that were not actually performed, were not
medically necessary, and were provided by an unlicensed
therapist instead of by a doctor as claimed.
One piece of evidence admitted against Phillips at trial
was a redacted audio recording and transcript of under-
cover investigators asking Phillips whether “you” partici-
pate in various aspects of Medicare billing. Supp. R. at 11-
14. Phillips contends that she responded affirmatively
to these questions addressed to “you” on behalf of her
company—not herself personally—and that this might
have been evident had the jury heard portions of the
audio recording that were redacted, although she is
unsure because she never received an unredacted
version, or so she claims. The government has always
contended that the redacted portions consisted solely
of irrelevancies, such as silent airtime, and it argues
on appeal that it provided Phillips with the complete,
unredacted version well before trial.
The district court admitted a mountain of other
evidence against Phillips, a small fraction of which in-
cluded both certain documents produced soon before
No. 09-1262 3
trial and testimony from witnesses described in those
documents. These later-produced documents consisted
of trial exhibits, proposed jury instructions, an interview,
a transcript of testimony at the pre-indictment forfei-
ture hearing, letters to counsel regarding evidence and
a witness, and finally “search warrant stuff”—an am-
biguous phrase which neither party has attempted to
decipher for us. R. 181 ¶ 12. Phillips moved to exclude
these documents, and testimony from any “witnesses
with respect thereto.” Id. at ¶ 13. The district court re-
sponded by asking Phillips’ attorney if he wanted addi-
tional time to review the materials. He replied that one
week would be sufficient “to review and properly digest
everything. . . . Just one week, if at all possible. We don’t
want a long period of time.” Tr. of April 2, 2007. The
district court granted the requested continuance.
A jury found Phillips guilty and the district court
sentenced her to fifty-one months in prison. Phillips
limits her appeal to the district court’s admission into
evidence of the redacted audio recording and the
evidence related to the later-produced documents.
II. DISCUSSION
A. Redacted Audio Recording
We begin by deciding the proper standards for ad-
dressing Phillips’ claims of error regarding the redacted
audio recording. We review a district court’s evidentiary
rulings for an abuse of discretion when the appellant’s
claim of error is preserved, see Gen. Elec. Co. v. Joiner,
4 No. 09-1262
522 U.S. 136, 141 (1997); United States v. Gajo, 390 F.3d
922, 926 (7th Cir. 2002), and for plain error when it is
forfeited. See Fed. R. Evid. 103(d); Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 733-36 (1993).
Phillips forfeited her claim that the district court erred
in denying her pretrial motion to exclude the redacted
recording without having reviewed the complete
version first, and thus we review this claim for plain
error. Phillips moved to exclude the redacted recording
on grounds that it was redacted, R. 168 at 9, but she
provided no argument asking the district court to
review the complete version before making its ruling.
Only on appeal does Phillips argue that a district court
must review a complete recording before admitting a
redacted version into evidence. Appellant’s Br. at 16-17.
Nor can we say that Phillips’ specific ground of objec-
tion, requiring the district court to review the complete
recording in its entirety, was “apparent from the con-
text” of her objection, Fed. R. Evid. 103(a)(1), especially
since she points to no precedent requiring a district
court to perform the sua sponte labor-intensive review
she now requests. Some trial courts have indeed
reviewed complete recordings or transcripts before ad-
mitting them into evidence. See United States v. Scarborough,
43 F.3d 1021, 1024 (6th Cir. 1994). But nothing requires
a trial court to do so, unless a party objects to a problem
with the recording or transcript, such as it being
inaudible, id. at 1024; United States v. Bryant, 480 F.2d
785, 789 (2d Cir. 1973), or inaccurate, United States v.
Chiarizio, 525 F.2d 289, 293 (2d Cir. 1975); Bryant, 480
F.2d at 789.
No. 09-1262 5
So we review the district court’s denial of Phillips’
motion to exclude the redacted recording for plain error.
Under this standard, we will reverse only if Phillips
shows that (1) the district court plainly erred in denying
her motion to exclude the evidence; and (2) the error
likely changed the trial’s outcome. Olano, 507 U.S. at 735;
United States v. Curtis, 280 F.3d 798, 801 (7th Cir. 2002).
We find that Phillips has met neither burden.
First, Phillips cannot show that the evidence plainly
should have been excluded. As we have said, nothing
requires a district court to review a complete recording
before admitting a redacted version into evidence,
unless a party objects to a problem with the recording
that requires the district court to review it in order to
referee the dispute. Moreover, even if a redacted
recording tells an incomplete story, this renders the
recording incomplete, not inadmissible—the proper
remedy would be to supplement the incomplete
recording, see Fed. R. Evid. 106, not exclude it.
And in any event, the redacted recording is complete on
its face. Phillips argues that the recording is incomplete
because it sheds no light on whether Phillips inculpated
herself personally, or her company, in response to ques-
tions asking whether “you” perform billing operations.
But the recording is clear that Phillips inculpated
herself personally, as the following excerpt reveals:
O’Dea: Okay, and then you mentioned about five
years ago you learned how to perform
billing . . .
Phillips: Right.
6 No. 09-1262
O’Dea: . . . so you’ve been doing that on your own
ever since?
Phillips: Yeah.
O’Dea: Okay. That’s a lot of work because you’re
managing the therapist and . . .
Phillips: Yeah.
O’Dea: . . . submitting the bills.
Phillips: Aw yeah, and I’m a workaholic.
Supp. R. at 13-14. It stretches credulity to think that
Phillips’ company, not herself personally, had “learned
how to perform billing” or was a “workaholic.” Id.;
see also id. at 11 (Phillips explaining how she taught
herself which billing codes to select). So it is no wonder
that Phillips—who participated in the conversation
including any portions that may have been redacted—
finds the existence of redacted exculpatory statements
“speculative.” Appellant’s Br. at 18.
In sum, the evidence was highly relevant, complete on its
face, and not excludable simply because Phillips now
wishes the district court would have performed a re-
viewing function it had no impetus to perform. So Phillips
can show no plain error in denying her motion to exclude.
Nor can Phillips show that the recording’s admission
likely changed the trial’s outcome. Even without the
recording, the jury still would have heard other evidence
the government produced establishing Phillips’ knowl-
edge and active involvement in the fraud, including
evidence showing that Phillips owned Health Care Cre-
No. 09-1262 7
ations, hired and assigned its doctor and therapists,
directed a therapist to file false reports about patients
not seen, ran operations, and benefitted from the monies
acquired by the fraud. And the investigators on the
recording still could have testified to their conversations.
In any event, Phillips made no effort in her appellate
briefs to show that the recording’s admission prejudiced
her, and we decline to make her arguments for her. See
Vaughn v. King, 167 F.3d 347, 354 (7th Cir. 1999) (“It is
not the responsibility of this court to make arguments
for the parties.”).
So much for the district court’s denial of Phillips’ pretrial
motion to exclude. Phillips also appeals the district
court’s subsequent admission of the redacted recording,
“when the government did not even produce or bring a
full copy of the conversation to trial, as it promised the
District Court it would.” Appellant’s Br. at 2. See also R. 178
at 2 (district court’s denial of Phillips’ motion to
exclude, assuming the government would “have the
complete recordings and transcripts available to the
defense at trial”). But see, e.g., Appellee’s Br. at 20 n.12
(asserting that Phillips’ “trial counsel had a copy of the
unredacted undercover recording”). Phillips forfeited
this claim, that the district court erroneously admitted
the redacted recording at trial when the complete re-
cording was never made available to her, because she
never objected at trial to its admission.
Phillips cannot avoid forfeiture by relying on her prior
motion to exclude the redacted version. Ordinarily, “a
party need not renew an objection . . . to preserve a claim
8 No. 09-1262
of error for appeal.” Wipf v. Kowalski, 519 F.3d 380, 385
(7th Cir. 2008) (quoting Fed. R. Evid. 103(a)). But we
must conduct our review of evidentiary rulings “in light
of the facts and circumstances before the trial court at
the time of the ruling. If the relevant facts and circum-
stances change materially after an advance ruling has
been made, those facts and circumstances cannot be
relied upon on appeal unless they have been brought to
the attention of the trial court by way of a renewed,
and timely, objection.” Fed. R. Evid. 103, Advisory
Comm. Notes, 2000 Amendment.
Phillips was required to alert the trial court that the
government had not provided her the complete
recordings, in order to preserve her objection to the
admission of the redacted version on the grounds that
the complete version was unavailable. Having failed to
do so, the circumstance of the government failing to
provide an unredacted version “cannot be relied upon on
appeal.” Id.; see also Wilson v. Williams, 182 F.3d 562, 567
(7th Cir. 1999) (en banc) (“Only arguments that were
actually presented to the district court before trial are
preserved for appeal.”). To hold otherwise would be to
“indulge in review by hindsight”—clouded as to
whether Phillips actually had access to the complete
recordings precisely because she never raised the issue
at trial—rather than to evaluate the trial court’s decision
to admit the evidence from its own perspective. Old
Chief v. United States, 519 U.S. 172, 182 n.6 (1997).
So we are left to assess the district court’s admission
of the redacted recording at trial for plain error. Again,
No. 09-1262 9
we will reverse only if Phillips shows that (1) the
district court plainly erred in admitting the evidence;
and (2) the error likely changed the trial’s outcome. Olano,
507 U.S. at 735; Curtis, 280 F.3d at 801. Again, Phillips
has met neither burden.
Phillips cannot show that the district court plainly
erred in admitting the evidence at trial. She argues that
if the unproduced redacted portions contained ex-
culpatory statements, “this would amount to a viola-
tion under Brady v. Maryland, 373 U.S. 83 (1963).” Appel-
lant’s Br. at 17-18. But even though producing the
complete recording would have subverted a Brady viola-
tion by alerting Phillips to any exculpatory statements,
Phillips cannot rely on the non-production of the
complete recording, as we have said. Even if she could,
there was no Brady violation because Phillips was a
party to the recorded conversation and would have
been aware of any exculpatory statements made. See, e.g.,
United States v. Mahalick, 498 F.3d 475, 478-79 (7th Cir.
2007). In sum, there was no error when admitting
the redacted recording in failing to consider redacted
exculpatory statements, because Phillips had the burden
of pointing them out and she still hasn’t done so.
Phillips also argues that admitting the redacted re-
cording burdened her with testifying to any redacted
exculpatory statements in violation of her Fifth Amend-
ment right to avoid self-incrimination. But Phillips need
not have taken the stand to provide any exculpatory
statements. All she had to do was identify them from
the complete recording and have those portions intro-
10 No. 09-1262
duced via Federal Rule of Evidence 106—as unlikely as
this might have been, for as we revealed, the redacted
portion inculpated her personally.
And again, even without the recording, it is unlikely
that the trial’s outcome would have been different,
given the plethora of other evidence against Phillips.
B. Later-Produced Documents
At last we come to Phillips’ final argument that the
government sandbagged her in the production of certain
evidence, and that the district court therefore erred in
admitting it. Phillips intentionally relinquished her right
to challenge inundation with untimely produced docu-
ments when she instructed the district court that one
week would be time enough to review them, and so we
do not review the court’s decision to admit these later-
produced documents for plain or any other type of error.
Olano, 507 U.S. at 733; United States v. Hamilton, 499
F.3d 734, 735 (7th Cir. 2007). Given Phillips’ waiver,
we need not address the government’s alternative argu-
ments that the later-produced documents were few,
provided little to no new information, were produced
later for legitimate reasons, and were easy to digest in
the additional week Phillips was provided.
III. CONCLUSION
Phillips’ claims of error in the trial resulting in her
conviction for healthcare fraud were never raised in the
No. 09-1262 11
district court and are unpersuasive here. Therefore,
we A FFIRM .
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