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United States v. Phillips

February 25, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
THERESA PHILLIPS, 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.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED FEBRUARY 8, 2010

Before BAUER, EVANS and TINDER, Circuit Judges.

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 investigators after the government failed to provide her an unredacted version. She further claims that the district court erred by admitting evidence related to certain 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 Creations, 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" participate 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 included both certain documents produced soon before 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 forfeiture hearing, letters to counsel regarding evidence and a witness, and finally "search warrant stuff"-an ambiguous 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 responded by asking Phillips' attorney if he wanted additional 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 addressing 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, 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 objection, requiring the district court to review the complete recording in its entirety, was "apparent from the context" 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 admitting 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.

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 ...


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