Belated Request for New Trial Years After Convicted of Health Insurance Fraud

The case involved fraudulently billing of Blue Cross Blue Shield of Texas (“BCBS”) for hearing aids.  On March 8, 2018, a jury convicted Terry Anderson of Counts One – Fifteen, and Rocky Anderson of Counts One – Four, Six, and Eight – Fifteen of the Superseding Indictment. The Court later found there was insufficient evidence to convict the Defendants on Counts One and Eight, acquitted the Defendants of those counts, and entered judgment on the other counts of conviction.

The Defendants appealed to the Fifth Circuit, and the Fifth Circuit affirmed the judgment (ECF Nos. 252-53). The Defendants now move for a new trial under Federal Rule of Criminal Procedure 33(b), claiming newly discovered evidence, in United States Of America v. Terry Lynn Anderson (1) Rocky Freeland Anderson, No. 3:17-CR-00222-M, United States District Court, N.D. Texas, Dallas Division (April 15, 2022).

ANALYSIS

The Defendants’ Motion for a New Trial was untimely under Rule 33(b)(1) because the Defendants filed this Motion for New Trial three years and ten months after the jury returned its verdict. The time to file a motion for new trial could not be extended because Defendants did not show excusable neglect.

The Government had more than 38 potential witnesses, who testified or were interviewed about events that took place over a decade ago, and at least one of them is now dead. It is reasonable to assume that the surviving witnesses’ memories of the events in issue have diminished and would continue to deteriorate until a new trial occurred. These factors significantly prejudice the Government.

The Motion Fails on the Merits

Even if the Court reached the merits, the Motion would have been denied.

The Defendants were convicted of health care fraud for submitting insurance claims for hearing aids that were medically unnecessary and for which Defendants did not conduct the requisite examinations.

The Defendants contend that two pieces of information constitute newly discovered evidence that, if admitted, would result in an acquittal: first, they cite the end, in January 2022, of a DOJ criminal investigation into the hearing aid company, Eargo, Inc.; and second, they reference an FDA rule proposed in October 2021, that would permit some hearing aids to be sold over-the-counter, without requiring an examination by a professional. None of this information is relevant to the Defendants’ convictions, would not be admitted at trial, would not require Brady/Giglio production, and thus, would not probably produce an acquittal.

The unrelated investigation into Eargo is not new evidence that would entitle Defendants to a new trial.  Defendants contend that the Government has access to evidence underlying DOJ’s decision not to prosecute Eargo criminally that would exculpate Defendants, because Defendants were also investigated for insurance fraud due to submissions for reimbursement for hearing aids.

DISCUSSION

Evidence from an unrelated DOJ investigation in 2021-2022 is not relevant to the Defendants’ actions, state of mind, and criminal intent during 2011-2014, which was the subject of the case against the Andersons.

The second alleged new evidence, a proposed FDA rule that would establish a new category of hearing aids that could be sold over-the-counter, without a hearing test, also does not constitute evidence that would entitle Defendants to a new trial. First, a change in the law does not constitute newly discovered evidence. Even if it did, the proposed rule is not relevant to Defendants’ fraud scheme, because Defendants were not selling over-the-counter hearing aids, but rather, were providing traditional hearing aids, subject to reimbursement by insurance companies.

Since the proposed FDA rule would not be admissible at trial, and therefore would not result in an acquittal; thus, the Motion failed on the merits.

Because Defendants’ Motion for a New Trial was untimely, and further did not cite newly discovered admissible evidence which would probably result in an acquittal of Defendants, the Motion for New Trial was denied.

Insurance fraud is a highly profitable and unusually effective crime. Even when the fraud perpetrators are caught, convicted and sentenced they have access to the millions of dollars they took from the insurers and the government from the fraud scheme, they can fund an appeal and when that fails, a tardy motion for new trial based on fairly spurious grounds. The USDC took the motion seriously and wrote a detailed opinion explaining why the motion – obviously not warranted and filed late – was a ludicrous waste of the court’s time and should have resulted in sanctions. It did not.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

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