Federal Evidence Review

Writing for the Eleventh Circuit, Former Associate Justice Sandra Day O'Connor notes in Medicare fraud case that admitting evidence that a defendant had once been married to the leader and co-conspirator of the charged clinic was not "visceral or inflammatory" evidence, so that its probative value in showing that the organizers of the conspiracy were likely to trust the defendant was not substantially outweighted by its probative value under FRE 403, particularly in light of the court's limiting instructions, in United States v. Mateos, __ F.3d __ (11th Cir. Oct. 19, 2010) (No. 08-17178)

After years of service on the U.S. Supreme Court, retiring justices frequently remain active - although the subject of their writings may seem to be a long step from contemplating the constitution. One recent example is an Eleventh Circuit case which affirms a defendant's conviction for Medicare fraud. In reaching this result, Justice O'Connor writing for the Circuit, noted the unique meaning of "prejudicial" under FRE 403 is more in the range of evidence that is visceral or inflammatory, rather than that the particular evidence makes the case harder to win for the defendant.

In the case, defendant Mateos was a nurse at a clinic that fraudulently billed Medicare millions of dollars. The government charged that the defendant and others at the clinic conspired in the fraudulent scheme conducted there. In sitting with the Eleventh Circuit, Justice O'Connor found that the trial court did not err in admitting evidence of the defendant's marriage to a co-conspirator who was also a founder of the clinic.

The defense was based on a claim that the defendant did not know that the clinic was submitting fraudulent claims to Medicare because the defendant had no access to the clinic's accounts, had no role in the billing process, and was not paid based on how much the clinic had earned. In addition, the defendant claimed that she "merely provided the patients with treatment the doctors prescribed ... and ...had no knowledge that Medicare may have been billed for services not actually provided." Indeed, the defendant on appeal took great consolation in the fact that "in rejecting her motion for judgment of acquittal," even the trial judge described the evidence against her as 'weak.'” Mateos, __ F.3d at __.

Upon conviction, the defendant raised a number of grounds of appeal. One of the grounds was that the trial court erred by allowing into evidence that the defendant had been married to one of the founders of the clinic. She contended this evidence was unduly prejudicial and should have been excluded. The trial judge admitted this evidence of the defendant's marriage because it was relevant in suggesting that the defendant "was somebody" the conspirators "would trust." In addition, the trial judge provided the jury a limiting instruction to the effect that “the mere fact that certain persons may have associated with each other” does not by itself establish a conspiracy. Mateos, __ F.3d at __.

On appeal, the defendant did not argue that the evidence was not relevant. Instead, she challenged its admission based on FRE 403, arguing "that the district court abused its discretion in admitting evidence of her relationship with" the co-defendant "because it was substantially more prejudicial than its minimal probative value, see Fed.R.Evid. 403, and the prejudice was not adequately curbed by the limiting instruction."

Writing for the Eleventh Circuit to affirm the defendant's conviction, Associate Justice O'Connor noted that:

"[T]he district court did not abuse its discretion by refusing to exclude evidence that [co-conspirator] Luis Benitez was Mateos's ex-husband. The evidence was relevant to the issue of her guilt, and it posed little threat of undue prejudice. The concept expressed in the limiting instruction, that people should not be adjudged guilty based on their past or present relationships, is a simple one that the jury could easily understand and take to heart."

The Eleventh Circuit recognized the sensitivity of the evidence of a defendant's marriage. Unlike cases of "violent spousal abuse" where the marriage is part of the story of the events at issue, in the defendant's case "there is nothing visceral or inflammatory about the fact that Mateos was previously married to [clinic founder] Benitez. It simply suggests that the organizers of the conspiracy were likely to trust Mateos, and it increases the likelihood that she knew what was going on at St. Jude. And it certainly was not inflammatory to such an extent that the district court's limiting instruction would not have been effective." Mateos, __ F.3d at __.