Background
Carrie Musselman, a chiropractor who owned an integrated medical practice in Illinois, was charged with defrauding Medicare through three billing practices. Her practice billed services performed by nurse practitioners and physician assistants under physicians’ names without satisfying Medicare’s “Incident To” requirements, billed adhesive ear neurostimulators under a code for surgically implanted devices, and billed sublingual allergy drops under a code for injections.
After a 13-day trial, a jury convicted Musselman of healthcare fraud and five of ten wire-fraud counts while acquitting her of the remaining wire-fraud counts and two obstruction counts. She received concurrent 20-month prison terms and was ordered to pay more than $2 million in restitution. After trial, the court learned that the jury foreperson had researched how to lead deliberations and prepared a document partly from online articles. Musselman sought a new trial based on that research and also challenged the court’s “ostrich,” or deliberate-avoidance, instruction.
The Court’s Holding
The Seventh Circuit affirmed. Assuming without deciding that the foreperson’s outside research triggered a presumption of prejudice under Remmer, the court held that the government rebutted it because there was no reasonable possibility that the research affected the verdict. The concerning article’s discussion of majority voting did not appear in the document taken into the jury room; the foreperson recalled organizational and charting advice rather than majority voting; the court had instructed the jury that its verdict must be unanimous; and every juror individually confirmed the verdict when polled.
The court also held that the evidence supported the ostrich instruction. Musselman claimed that she lacked guilty knowledge, while the government presented evidence from which jurors could find that she deliberately avoided confirming suspected fraud. Numerous employees and advisers raised billing red flags, yet Musselman continued the challenged practices, dismissed concerns, and relied on vendors or affiliated consultants with financial incentives rather than pursuing obvious independent sources such as Medicare or an unaffiliated certified coder. Although the district court described the instruction as a close call, giving it was not an abuse of discretion.
Key Takeaways
- Even assuming unauthorized juror research is presumptively prejudicial, the government may rebut the presumption by showing no reasonable possibility that the outside material affected deliberations or the verdict.
- Musselman waived a request for a further evidentiary hearing by expressly urging the district court not to conduct additional juror inquiries; she could not rely on resulting uncertainty to obtain appellate relief.
- A deliberate-avoidance instruction may be supported by repeated red flags and a defendant’s failure to pursue natural, reliable avenues of inquiry, particularly when the defendant’s professional role creates heightened obligations to investigate.
Why It Matters
The decision illustrates how courts evaluate extraneous juror information by examining what reached the jury, its relevance, the court’s instructions, and the jurors’ confirmation of their verdict. It also underscores the importance of preserving requests for a Remmer hearing rather than opposing further inquiry and later invoking gaps in the record.
For healthcare-fraud prosecutions, the opinion confirms that limited inquiries do not necessarily defeat a willful-blindness theory when a defendant repeatedly consults financially interested sources while disregarding independent warnings and readily available authoritative guidance.