     Case: 17-10891      Document: 00514722451         Page: 1    Date Filed: 11/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 17-10891                         November 14, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TONYA EVANS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 3:15-CR-519-14


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Tonya Evans appeals her conviction and sentence for conspiracy to
defraud the United States with respect to compensation claims and making
false statements or fraud to obtain federal employees’ compensation. She
argues that the indictment improperly joined her and her codefendant; the
district court abused its discretion by denying her motion to sever; there was a
material variance between the indictment and the proof at trial relative to the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-10891

number of conspiracies; her coconspirators provided impermissible opinion
testimony; evidence of her withdrawn plea agreement was improperly
admitted into evidence; and the district court improperly determined the loss
amount attributable to her. We affirm.
      Larry Washington was a licensed professional counselor who provided
counseling and therapeutic services to approximately 140 patients, all of whom
were injured on the job and were receiving federal worker’s compensation
benefits from the Department of Labor (DOL). Evans was one of Washington’s
patients. Washington asked Evans and approximately 30 other patients to fill
out forms falsely claiming that they received counseling and therapeutic
services; these forms were submitted to the DOL for reimbursement. Evans
was paid $6,000 for her participation.
      Evans complains that she was indicted with another patient of
Washington’s who also participated in the conspiracy, McArthur Baker.
Whether the initial joinder of charges is proper under Rule 8 of the Federal
Rules of Criminal Procedure is judged based on the allegations in the
indictment, which are presumed to be true for these purposes barring
allegations of prosecutorial misconduct. FED. R. CRIM. P. 8(a).
      Here, the indictment alleged that Evans and Baker engaged in a scheme
to receive kickbacks in exchange for filling out falsified medical documents that
were used by coconspirators to defraud the DOL. Although Baker and Evans
acted independently of each other and at different times, they were part of a
common conspiracy to profit from defrauding the DOL by providing
Washington with false medical documentation for billing purposes. See United
States v. Butler, 429 F.3d 140, 146-47 (5th Cir. 2005). See id.
      Evans also argues that the district court erred by denying her motion to
sever the cases after Baker elected to proceed pro se at trial. We review the



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                                  No. 17-10891

denial of a motion to sever for an abuse of discretion. United States v. Simmons,
374 F.3d 313, 317 (5th Cir. 2004).
      There is a strong presumption “that [d]efendants who are indicted
together should generally be tried together, particularly in conspiracy cases.”
United States v. Ledezma-Cepeda, 894 F.3d 686, 690 (5th Cir. 2018) (internal
quotation marks omitted). Evans’s generalized allegation of prejudice is
insufficient to overcome that presumption. See id.; United States v.
Mikolajczyk, 137 F.3d 237, 242 (5th Cir. 1998).
      We review Evans’s claim that there was a material variance between the
indictment and the evidence introduced at trial for plain error. See United
States v. Rodriguez, 831 F.3d 663, 668 n.9 (5th Cir. 2016). We need not
determine whether a material variance existed in this case because, even if it
did, vacatur is required only if the variance prejudiced Evans’s substantial
rights. See United States v. Delgado, 401 F.3d 290, 295 (5th Cir. 2005). The
record amply establishes Evans’s participation in a conspiracy to defraud the
DOL. Accordingly, Evans’s substantial rights were not prejudiced, and she
fails to show plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009);
Rodriguez, 831 F.3d at 668 n.9.
      Review of whether the district court improperly admitted opinion
testimony from two of Evans’s coconspirators is also for plain error, as Evans
concedes. See Puckett, 556 U.S. at 135. The Federal Rules of Evidence prohibit
opinion testimony by lay witnesses with some exceptions. FED. R. EVID. 701.
The record evidence offers no support for the notion that the witnesses offered
prohibited opinion testimony. To the extent that the witnesses acknowledged
that they participated in activities that were fraudulent or improper, their
opinions fell within the scope of permissible testimony set forth in Rule 701.
Moreover, Evans has not made any meaningful attempt to show that her



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                                   No. 17-10891

substantial rights were affected by the admission of the testimony, in light of
the other evidence against her.
         The Government argues that Evans waived any argument that her
withdrawn plea documents were improperly admitted because she waived the
protections of Federal Rule of Evidence 410 and Federal Rule of Criminal
Procedure 11(f) and because Evans waived the error under the invited-error
doctrine. Alternatively, the Government argues that review should be for plain
error.
         We need not reach the questions of invited error or waiver because
Evans’s claim fails under the less stringent plain error standard. See United
States v. Martinez-Vega, 471 F.3d 559, 563 n.4 (5th Cir. 2006); United States v.
Fernando-Cusco, 447 F.3d 382, 384 (5th Cir. 2006). The evidence of Evans’s
guilt was overwhelming. Moreover, the jury had already heard that Evans
knew that her conduct was fraudulent and that she admitted as much to
investigators. She therefore cannot demonstrate that her substantial rights
were prejudiced by the introduction of the withdrawn plea agreement. See
Puckett, 556 U.S. at 135.
         Evans argues that the district court erred by finding that the amount of
loss involved in the offense was more than the $6,000 she received for
completing the forms. The district court need only make “a reasonable estimate
of the loss,” based on its assessment of the evidence in the case, and its loss
calculation is entitled to appropriate deference. United States v. Hebron, 684
F.3d 554, 560 (5th Cir. 2012) (citing U.S.S.G. § 2B1.1, comment. (n.3(C))). This
court “will not upset these findings unless they are implausible in light of the
record as a whole.” United States v. Hearns, 845 F.3d 641, 649 (5th Cir. 2017)
(internal quotation marks and citation omitted).




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                                  No. 17-10891

      The district court found that Evans was responsible for the entire
amount that Washington billed to the DOL based on the forms she filled out.
The district court’s foreseeability findings were plausible in light of the record.
Hearns, 845 F.3d at 649.
      AFFIRMED.




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