                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                                                                      F I L E D
                                                                                    December 17, 2003
                            UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT
                                                                                  Charles R. Fulbruge III
                                                                                          Clerk
                                  _________________________

                                        No. 02 - 21247
                                    SUMMARY CALENDAR
                                  _________________________

UNITED STATES OF AMERICA,

                       Plaintiff - Appellee

   v.

JAMES T. PARSONS, M.D.,

                       Defendant - Appellant

______________________________________________________________________________

                 On Appeal from the United States District Court for the
                              Southern District of Texas
                                   (H-02-CR-93-1)
______________________________________________________________________________

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

        In this appeal we review Defendant - Appellant, James Parsons’ (hereinafter, “Parsons”),

conviction for health care fraud and for aiding and abetting. For the following reasons, we affirm

the district court’s judgment.




        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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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                                                   I.

                        FACTUAL AND PROCEDURAL BACKGROUND

        Parsons was indicted on twenty-three counts of health care fraud, including charges for

aiding and abetting. The Government showed that Parsons submitted numerous Medicare and

Medicaid claims for office visits that never occurred and for echocardiogram services that were

never performed.

        Prior to trial, Parsons submitted a motion in limine seeking to exclude materials from the

Texas State Board of Medical Examiners (hereinafter, “the Medical Board”) concerning prior

regulatory violations committed by Parsons. In response to this motion, the Government

promised not to introduce evidence relating to the Medical Board without first providing notice.

At trial, the Government provided notice that it sought to introduce the Medical Board materials

as evidence inherent to the instant fraud, scheme, or of other wrongs pursuant to FED. R. EVID.

404(b). Parsons restated his objection and an amended motion in limine was granted.

        The Government proceeded to call twelve witnesses who testified that they had not

received the medical treatment for which Parsons had billed Medicare or Medicaid. They testified

that Parsons had obtained their social security numbers fraudulently by bringing baked goods to

the assisted living facility in which they lived. Witnesses also testified that their signatures had

been forged on Medicare forms.

        Parsons’ counsel then called several witnesses, including Jesse Odoms. Odoms testified

that Parsons had treated her at the assisted living facility and at his office. She stated, however,

that she did not have heart problems and she did not remember Parsons performing an

echocardiogram on her. On cross-examination, the Government introduced evidence that Parsons


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had billed Medicare for six echocardiograms allegedly performed on Odoms over a period of two

years.

         Finally, Parsons took the stand and testified that the Medicare bills were mistakes or

accidents, blaming his office staff and the lack of organization at his office. The Government then

sought to introduce the Medical Board materials to contradict Parsons’ defense of mistake or

accident. The district court allowed the Government to introduce the Medical Board materials in

a limited manner. The Government introduced evidence that Parsons had been warned by the

Medical Board in 1994 to adequately supervise his employees and that his files were substandard.

During closing arguments, the Government again mentioned Parsons’ dealing with the Medical

Board in an attempt to discredit Parsons’ defense of accident or mistake.

         Before submitting the case to the jury, the Government asked to drop two counts from the

indictment, and the district court agreed. The jury found Parsons guilty on all counts and the

district court sentenced Parsons to 57 months’ imprisonment and three years’ supervised release.

Parsons timely appealed.

                                                  II.

                                         404(b) EVIDENCE

         Parsons argues that the admission of evidence involving his prior dealings with the

Medical Board was an abuse of discretion because the evidence was more prejudicial than

probative. In reviewing the district court’s evidentiary ruling, this court is highly deferential,

reversing only when an abuse of discretion has prejudiced the defendant. United States v. Booker,

334 F.3d 406, 411 (5th Cir. 2003). We consider the probative value of the evidence, the

Government’s need for the evidence to show intent, and the district court’s limiting instruction in


                                                  -3-
determining whether the district court abused its discretion. Id.

       When Parsons raised the defense of mistake, he made evidence regarding his intent

relevant. See United States v. Tullos, 868 F.2d 689, 697 (5th Cir. 1989). The evidence of

Parsons’ prior dealings with the Medical Board showed that Parsons knew that he had a duty to

supervise his staff to make sure they were not violating the law. Evidence that Parsons was put

on notice that he was accountable for the claims he filed was relevant to show the absence of

mistake or accident.

       The district court was careful not to equate the Medical Board regulatory violations with

evidence of the crime charged. See United States v. Christo, 614 F.2d 486, 492 (5th Cir. 1980).

The district court did so by not allowing the Government to introduce the Medical Board’s

findings of fact regarding its investigation. The district court also prohibited the Medical Board’s

report from being physically submitted into evidence. See United States v. Riddle, 103 F.3d 423

(5th Cir. 1997). In fact, there was no mention that a regulatory violation had occurred. The

district court did not abuse its discretion by admitting this evidence. See Tullos, 868 F.2d at 697.

                                                III.

                         INEFFECTIVE ASSISTANCE OF COUNSEL

       Parsons also argues that his counsel was ineffective for calling Jesse Odoms as a witness

because her testimony was cumulative and merely corroborated the Government’s theory that

Parsons billed Medicare for echocardiograms that were not performed.

       We generally decline to review ineffective assistance of counsel claims on appeal. United

States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1987). The record is not sufficiently developed to

ascertain counsel’s true motivation for calling Odom as a witness. United States v. Gordon, 346


                                                 -4-
F.3d 135, 137 (5th Cir. 2003). Thus, we decline to entertain the issue.

                                                IV.

                                         CONCLUSION

       For the foregoing reasons, we affirm the district court’s judgment.




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