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 mid-level providers 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, the jury convicted Musselman of healthcare fraud and five of ten wire-fraud counts while acquitting her of the remaining wire-fraud and obstruction counts. She received concurrent 20-month prison terms and was ordered to pay more than $2 million in restitution. After trial, the court discovered that the jury foreperson had consulted online articles about leading deliberations and prepared a deliberation roadmap. Musselman sought a new trial based on that outside research and also challenged the court’s “ostrich,” or willful-blindness, instruction.
The Court’s Holding
The Seventh Circuit affirmed. Assuming without deciding that the foreperson’s 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 problematic article’s discussion of majority voting was not included in the document taken into the jury room; the foreperson’s notes instead called for jurors to keep talking when they disagreed; the jury had been instructed that unanimity was required; and every juror individually confirmed the verdict when polled. The article also had nothing to do with the evidence or Musselman’s guilt.
The court rejected Musselman’s reliance on uncertainty about whether the majority-vote concept reached the jury. The available remedy for unresolved uncertainty would have been an evidentiary hearing, but Musselman expressly asked the district court not to conduct further inquiry and did not seek such a hearing on appeal. The court also held that the evidence supported the ostrich instruction. Numerous red flags, Musselman’s responsibility for her practice and billing, her reliance on financially interested vendors despite warnings, and her failure to pursue obvious authoritative sources permitted a jury to find deliberate avoidance rather than mere negligence.
Key Takeaways
- Even assuming unauthorized juror research is presumptively prejudicial under Remmer, the government can rebut that presumption by showing no reasonable possibility that the material affected deliberations or the verdict.
- A defendant who expressly opposes further juror inquiry cannot later use the resulting uncertainty to obtain relief on appeal.
- A willful-blindness instruction may be given when evidence supports both actual knowledge and deliberate avoidance, including the failure of a person with heightened responsibilities to pursue natural and obvious questions after repeated red flags.
Why It Matters
The decision illustrates the Seventh Circuit’s practical approach to outside juror information: the central question is whether the intrusion could reasonably have affected the verdict, evaluated through the material’s content, its apparent use, the court’s instructions, and the jurors’ responses. It also underscores the litigation consequences of asking a trial court not to investigate possible juror misconduct.
For healthcare-fraud prosecutions, the opinion confirms that selective inquiries to financially interested sources may support willful blindness when authoritative avenues remain available and repeated warnings call for further investigation. Professionals responsible for regulated billing cannot necessarily characterize ignored red flags as mere carelessness.