United States v. O'Lear

90 F.4th 519

UNITED STATES of America, Plaintiff-Appellee, v. Thomas G. O'LEAR, Defendant-Appellant.

No. 22-3835

United States Court of Appeals, Sixth Circuit

Argued: July 28, 2023

Decided and Filed: January 8, 2024

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:19-cr-00349-1—Dan A. Polster, District Judge.

ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER'S OFFICE, Cincinnati, Ohio, for Appellant. Elliot D. Morrison, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER'S OFFICE, Cincinnati, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: STRANCH, BUSH, and MURPHY, Circuit Judges.

OPINION

MURPHY, Circuit Judge.

Thomas O'Lear ran a company that ostensibly offered mobile x-ray services for residents at nursing homes. But O'Lear used the company to cheat Medicare and Medicaid programs out of almost $2 million. He relied on the identities of nursing-home residents to bill for fictitious x-rays. To conceal this fraud during an audit, he also forged the names of his staff and put duplicate x-rays of some patients in the files of others. A jury convicted him of healthcare fraud, making a false statement in connection with healthcare services, and aggravated identity theft. The district court sentenced him to 180 months' imprisonment.

O'Lear raises several questions on appeal, including the following two: Did the district court violate his Sixth Amendment right to an "impartial jury" by excluding individuals who had not been vaccinated against COVID-19 from the pool of potential jurors? And were the nursing-home residents "victims" of O'Lear's fraud under a "vulnerable victims" sentencing enhancement even though Medicare and Medicaid suffered the monetary losses? Our respective answers: No and yes. Unlike members of a particular race or sex, the unvaccinated do not qualify as the type of "distinctive group" that can trigger Sixth Amendment concerns with excluding a "fair cross section of the community" from the jury pool. Lockhart v. McCree, 476 U.S. 162, 174, 184, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). And because O'Lear used the identities and health records of nursing-home residents without their permission, he "[took] advantage of" them in a way that made them "victims" of his fraud under the ordinary understanding of that term. United States v. Webster, 615 F. App'x 362, 364 (6th Cir. 2015) (citation omitted). O'Lear's remaining arguments also lack merit. We thus affirm.

I

We describe the facts in the light most favorable to the government because the jury found O'Lear guilty of nearly all charges. See United States v. Maya, 966 F.3d 493, 496 (6th Cir. 2020).

In 2005, O'Lear and his wife formed Portable Radiology Services to provide mobile x-ray services in northeast Ohio. The company also became eligible to submit claims to Medicare and Medicaid at this time. It served elderly and disabled patients who lived at nursing homes or similar facilities. These patients might need x-rays to diagnose such things as pneumonia or broken bones.

When a nursing home ordered x-rays from Portable Radiology Services, the company's x-ray technicians would drive its equipment to the home. Upon their arrival, the technicians would complete a "requisition form" for each resident who needed x-rays. The nursing home would have partially filled out this form by identifying the doctor who requested the x-rays and the reasons for them. The technicians would sign the form to confirm that they took the x-rays on the identified date. After completing the x-rays, the technicians would process them back at the company's offices and email or fax them to an affiliated radiologist for a medical review. The radiologist would dictate a formal report and call the technicians to convey any immediate findings. Before the radiologist completed the report, the technicians would record the immediate findings and alert the nursing home of the results. The technicians would also later provide copies of the relevant forms to O'Lear so that he could bill Medicare or Medicaid for the company's services.

Portable Radiology Services had a reasonable stream of business through 2013. One of its former x-ray technicians believed that she took an average of 18 x-rays a day during this time. But business began to slow when the company's largest nursing-home customers ended the relationship. By 2016, x-ray technicians might perform just one x-ray (or even none) on any given day.

Surprisingly, this slowdown did not hurt the company's bottom line. To the contrary, its payments from Medicare and Medicaid skyrocketed over the years. In 2013, Portable Radiology Services obtained less than $200,000 from these programs. By 2016, those payments had ballooned to over $800,000.

How did the company's revenue grow while its business declined? From late 2015 to 2017, O'Lear filed hundreds of fraudulent claims with Medicare and Medicaid on behalf of his company. O'Lear orchestrated this fraud in different ways. For many patients, he billed for a legitimate x-ray (backed by proper records) and then dozens of illegitimate ones (lacking documentary support). As an example, O'Lear billed 178 claims and received $13,859.76 for a patient even though the company's supporting documentation for these claims justified only two for a total of $156.71. O'Lear also billed for x-rays even after patients had died. And he billed for excessive transportation costs. X-ray technicians would sometimes drive to a nursing home and take x-rays of multiple patients, but O'Lear would charge this single transportation expense to every patient.

All told, a statistical expert opined that Portable Radiology Services obtained an estimated $1.989 million from the Medicare and Medicaid programs based on fraudulent claims. O'Lear used much of these illegitimate funds on personal items, including a new home and car.

In 2016, CareSource, a Medicare and Medicaid payor, uncovered this fraud during an audit. In response to a request for documents, O'Lear produced doctored records. He, for example, put the same x-ray images in the files of many patients. Some files for male patients even contained x-rays of female anatomy. O'Lear also put a different patient's name on x-rays that still identified the true patient. And he forged the signatures of technicians and doctors on the forms justifying the x-rays.

CareSource alerted the authorities. The government eventually charged O'Lear with 25 counts of healthcare fraud for specific false claims that Portable Radiology Services submitted to Medicare or Medicaid, all in violation of 18 U.S.C. § 1347. It also charged him with one count of making false statements in connection with his healthcare services for his attempts to cover up the fraud, in violation of 18 U.S.C. § 1035(a)(1). After the parties' plea negotiations broke down, the government filed a superseding indictment adding two counts of aggravated identify theft, in violation of 18 U.S.C. § 1028A(a)(1).

O'Lear stood trial. Government agents and former employees detailed the scope of his fraud. Testifying in his defense, O'Lear conceded that his company had committed a "significant amount" of fraud but blamed an x-ray technician named Brien Fletcher. O'Lear Tr., R.95, PageID 1610-18, 1788. Fletcher, who made about $26,000 in 2016, refuted this claim. The jury did not believe O'Lear. It found him guilty on 25 of the 28 counts.

At sentencing, the district court calculated O'Lear's guidelines range as 188 to 235 months' imprisonment. It varied downward by imposing a 180-month sentence.

II

O'Lear raises three groups of claims on appeal. He primarily argues that the composition of his jury pool violated the Sixth Amendment. He also challenges his two aggravated-identity-theft convictions. And he objects to his 180-month sentence on various grounds.

A. Sixth Amendment Challenge to Jury Pool

Before O'Lear's trial, the district court announced that it planned to allow individuals to serve on the jury only if they had been fully vaccinated against COVID-19. O'Lear objected that the district court's order would violate his Sixth Amendment right to have a jury pool made up of a fair cross section of the Northern District of Ohio. The court disagreed. See United States v. O'Lear, 2022 WL 419947, at *1-3 (N.D. Ohio Feb. 11, 2022). We treat its ultimate holding that the vaccination mandate did not violate O'Lear's Sixth Amendment rights as a "mixed question of law and fact" reviewed de novo. United States v. Allen, 160 F.3d 1096, 1101 (6th Cir. 1998).

1. Background Law

The Sixth Amendment gives a criminal defendant the right to "an impartial jury of the State and district wherein the crime shall have been committed[.]" U.S. Const. amend. VI. At its core, this right to an "impartial" jury prohibits a court from empaneling jurors who have a personal bias against the defendant or who have decided on the defendant's guilt before hearing any evidence. See Irvin v. Dowd, 366 U.S. 717, 722-28, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); United States v. Burr, 25 F. Cas. 49, 50-51 (C.C.D. Va. 1807) (No. 14,692G) (Marshall, C.J.). But the right also extends beyond this narrow guarantee. If it did not, the government could "stack the deck" against a defendant by restricting jury service to only those individuals who tend to favor prosecutors. Holland v. Illinois, 493 U.S. 474, 480-81, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990). So ever since Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Supreme Court has held that the Sixth Amendment regulates how the government may assemble the juries that will decide on the guilt or innocence of defendants. See id. at 528, 95 S.Ct. 692. This jury-assembly process must ensure that the broad pool of potential jurors (often referred to as the jury "venire") represents "a fair cross section of the community." Duren v. Missouri,...