United States v. Sandra Thompson

Case: 16-30453 Document: 00514023588 Page: 1 Date Filed: 06/07/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-30453
Fifth Circuit
Summary Calendar
FILED
June 7, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
SANDRA PARKMAN THOMPSON,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:13-CR-243-2
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Sandra Parkman Thompson appeals from the district court’s denial of
her motion to dismiss the indictment on double jeopardy grounds. We review
the district court’s denial of her motion de novo. United States v. Jones, 733
F.3d 574, 579-80 (5th Cir. 2013). We will accept the district court’s underlying
factual findings unless they are clearly erroneous. Id.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-30453
Thompson and her co-defendant, Tracy Richardson Brown, were charged
with one count of conspiring to commit Medicare fraud in violation of 18 U.S.C.
§ 1349; one count of conspiring to pay and receive illegal remunerations in
violation of 18 U.S.C. § 371; nine counts of health care fraud in violation of 18
U.S.C. §§ 2 & 1347; and seven counts of paying and receiving illegal
remuneration in violation of 42 U.S.C. §§ 1320a-7b(b)(1)(A) & (b)(2)(A). The
indictment alleged that Thompson participated in a scheme by which Brown,
the owner of a durable medical equipment (DME) company called Psalms 23
DME, LLC (Psalms 23), improperly charged Medicare for equipment that
beneficiaries either received but did not need or did not receive. Previously, in
the Middle District of Louisiana, Thompson was found guilty of 15 counts of
health care fraud and one count of conspiring to pay and receive illegal
remuneration as a result of her participation in a scheme through which Young
Okoro Anyanwu, the owner of Lobdale Medical Services, LLC (Lobdale),
improperly charged Medicare for DME that beneficiaries either received but
did not need or did not receive.
In her motion to dismiss the indictment, Thompson argued that her
indictment in this case charged the same offenses of which she had been
convicted in the Lobdale prosecution. The district court denied the motion and,
in considering Thompson’s conspiracy charges, properly relied on the five-
factor test articulated in United States v. Marable, 578 F.2d 151, 154 (5th Cir.
1978), overruled on other grounds, United States v. Rodriguez, 612 F.2d 906,
919 & n.35 (5th Cir. 1980). It evaluated the conspiracy charges in both
indictments in terms of:
1) time; 2) persons acting as co-conspirators; 3) the statutory
offenses charged in the indictments; 4) the overt acts charged by
the government or any other description of the offense charged
that indicates the nature and scope of the activity that the
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No. 16-30453
government sought to punish in each case; and 5) places where the
events alleged as part of the conspiracy took place.
Id. at 154. The district court concluded that the conspiracy charges did not
violate the Double Jeopardy Clause because the factors indicating the
existence of a single conspiracy spanning both indictments were outweighed
by the factors supporting a finding that Thompson was involved in two
separate conspiracies. Pursuant to Abney v. United States, 431 U.S. 651
(1977), the district court certified that Thompson’s nonfrivolous basis for her
motion rendered its denial an appealable final order.
Thompson has not shown error in the district court’s denial of her motion
to dismiss the substantive charges or the conspiracy charges in her indictment.
Thompson’s primary argument is that the district court erred by interpreting
Jones, 733 F.3d at 581-82, as signifying that, in cases involving health care
fraud, the DME provider is always the “central organizing figure” for purposes
of the second Marable factor. Regardless of whether the district court
misconstrued Jones as setting forth such a proposition in every case, the
district court’s analysis in comparing the relevant aspects in this case with
those at issue in Jones shows that it did not clearly err in finding that the DME
providers were the “central organizing figures” in both the Psalms 23 and
Lobdale conspiracies. After consideration of all five factors, we agree with the
district court’s conclusion that the first and third factors, which might indicate
the existence of a single conspiracy, are outweighed by the remaining factors,
which show that Thompson was involved in two separate conspiracies.
Accordingly, we AFFIRM the district court’s denial of Thompson’s
motion to dismiss the indictment on double jeopardy grounds.
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