     Case: 19-10591      Document: 00515064800         Page: 1    Date Filed: 08/06/2019




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

                                                                                  FILED
                                      No. 19-10591                           August 6, 2019
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


              Plaintiff - Appellee

v.

TARYN E. STUART,

              Defendant - Appellant


                   Appeal from the United States District Court
                       Northern District of Texas, Dallas
                              USDC 3:17-CR-103-14




Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Taryn E. Stuart has filed an interlocutory appeal
with this court seeking to reverse the district court’s order denying her motion
to revoke the magistrate judge’s detention order, which revoked her release
pending sentencing. Because we conclude that the district court did not abuse
its discretion in denying Stuart’s motion, we affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-10591      Document: 00515064800       Page: 2    Date Filed: 08/06/2019



                                   No. 19-10591
                    I. Factual & Procedural Background
      From approximately July 2012 to September 2015, Stuart worked as a
Licensed Vocational Nurse for Novus, 1 an approved hospice service agency in
the Medicare and Medicaid systems. On February 23, 2017, Stuart and
numerous others were indicted on fifteen counts of health care fraud and
unlawful distribution of controlled substances. Stuart was individually
indicted on one count of conspiring to commit health care fraud 2 and one count
of unlawful distribution of a controlled substance 3 and aiding and abetting.
The essence of the scheme was to over-bill Medicare and Medicaid by
submitting fraudulent claims for hospice services. The stipulated facts section
in Stuart’s presentence investigation report describes a particularly ominous
part of the scheme wherein Stuart and others administered high doses of
Schedule II controlled medications to hospice patients, whether they needed
the medications or not, to ensure that their medical records contained
documentation that would justify billing Medicare at the higher “continuous
care” billing rate. This aggressive medication practice resulted in the death of
numerous hospice patients.
      Stuart was arrested and made her initial appearance on February 28,
2017 but she was released on her personal recognizance with pretrial
supervision after being advised in writing of the conditions of her pretrial
release. The conditions of Stuart’s release required that she, inter alia, not use
or unlawfully possess a narcotic drug or other controlled substance as defined
in 21 U.S.C. § 802, unless such was prescribed to her, and that she submit to
testing for a prohibited substance if required to do so by the pretrial services
office or a supervising officer. Stuart signed a form in which she acknowledged


      1 Novus is comprised of Novus Health Services and Optim Health Services.
      2 18 U.S.C. §§ 1347, 1349.
      3 21 U.S.C. § 841(a)(1), (b)(1)(C); 18 U.S.C. § 2.

                                          2
    Case: 19-10591    Document: 00515064800      Page: 3    Date Filed: 08/06/2019



                                  No. 19-10591
that violating any of the conditions of her release may result in a revocation of
her release and an order of detention.
      On June 26, 2018, Stuart pled guilty before a magistrate judge, pursuant
to a plea agreement, to conspiring to commit health care fraud, as charged in
Count 1 of the indictment. The district court accepted the guilty plea and
adjudged Stuart guilty. The district court also adopted the magistrate judge’s
findings that Stuart was “not likely to flee or pose a danger to any other person
or the community if released and should therefore be released.” Stuart’s
sentencing is currently set for December 6, 2019.
      On April 10, 2019, the probation officer filed a report of Stuart’s violation
of the conditions of her pretrial release. The probation officer alleged that, on
March 25, 2019, Stuart had submitted a urine specimen that tested positive
for hydrocodone and hydromorphone. Stuart submitted another urine
specimen the following day that also tested positive for hydrocodone and
hydromorphone. Based on the violation report, the magistrate judge
summoned Stuart to appear at a hearing on April 24, 2019.
      Stuart pled true to the allegation that she had violated the conditions of
her release, but she argued that she should be allowed to remain on release
pending her sentencing because she had been experiencing back pain she “took
a hydrocodone that belonged to a family member to deal with those pain
issues.” She pointed out that prior to this incident, she had complied with the
terms of her release for over two years. The government stated that it would
“defer to the Court and the advice of Probation on whether [Stuart] should be
detained.”
      The magistrate judge determined that, based on Stuart’s admission,
there was clear and convincing evidence that she had violated the conditions
of her release by using a controlled substance without a valid prescription. The
magistrate judge acknowledged that Stuart had complied with the conditions
                                         3
    Case: 19-10591     Document: 00515064800     Page: 4   Date Filed: 08/06/2019



                                 No. 19-10591
of her release for two years and that she had “some physical issues.” The
magistrate judge further observed, however, that Stuart had made a “conscious
choice” to use a controlled substance that had not been prescribed to her, and
that she had done so knowing “the consequences of not following” the
conditions of her release. Reiterating that Stuart had knowingly violated the
conditions of her release, the magistrate judge concluded that Stuart was
“unlikely to abide by any condition or combination of conditions of release” and
revoked her release.
      Stuart then moved the district court, pursuant to 18 U.S.C. § 3145(b), for
revocation or amendment of the detention order issued by the magistrate
judge. The district court denied Stuart’s motion, explaining that “there is clear
and convincing evidence that [Stuart] violated her conditions of release under
§ 3148(b)(1)(B), and that [Stuart] is unlikely to abide by any condition or
combination of conditions of release under § 3148(b)(2)(B).” Stuart filed this
interlocutory appeal from the district court’s order denying her motion to
revoke the magistrate judge’s order of pretrial detention.
                           II. Standard of Review
      “Absent an error of law,” this court will uphold a district court’s pretrial
detention order “if it is supported by the proceedings below, a deferential
standard of review that this court equates to an abuse of discretion standard.”
United States v. Hare, 873 F.2d 796, 798 (5th Cir. 1989) (internal quotation
marks and citations omitted). “The same standard applies to a determination
in response to a motion to revoke a detention order, pursuant to 18 U.S.C.
§ 3145(b).” Id. The factual basis of the decision is reviewed under the clearly
erroneous standard. See United States v. Aron, 904 F.2d 221, 223 (5th Cir.
1990).




                                        4
    Case: 19-10591     Document: 00515064800       Page: 5   Date Filed: 08/06/2019



                                  No. 19-10591
                                 III. Discussion
      Pursuant to § 3142, a judicial officer shall order the release of a
defendant pending trial subject to certain required conditions and “subject to
the least restrictive further condition, or combination of conditions, that such
judicial officer determines will reasonably assure the appearance of the person
as required and the safety of any other person and the community.” See 18
U.S.C. §§ 3142(c)(A)-(B). Such conditions may include a requirement that the
defendant “refrain from . . . any use of a narcotic drug or other controlled
substance, as defined in section 102 of the Controlled Substances Act (21
U.S.C. 802), without a prescription by a licensed medical practitioner.” Id.
§ 3142(c)(B)(ix). However, “[a] person who has been released under section
3142 . . . and who has violated a condition of [her] release, is subject to a
revocation of release, an order of detention, and a prosecution for contempt of
court.” Id. § 3148(a). Pursuant to § 3148(b), “[t]he judicial officer shall enter
an order of revocation and detention if, after a hearing, the judicial officer finds
that there is . . . clear and convincing evidence that the person has violated any
other condition of release” and that “the person is unlikely to abide by any
condition or combination of conditions of release.” Id. § 3148(b). “[A] district
court’s finding that a defendant will not abide by any conditions of release may
be established by a preponderance of the evidence.” Aron, 904 F.2d at 224.
      In support of her argument that this court should reverse the district
court’s order denying her motion to revoke the detention order, Stuart states
that she is a single mother to a teenage daughter who routinely works long
shifts and is on her feet most of the day. She avers that she has had chronic
“back issues” for many years. She claims that, apart from this single violation,
she has abided by the terms of her pretrial release while she awaits sentencing
later this year. She argues that the district court’s determination that it is


                                         5
    Case: 19-10591     Document: 00515064800       Page: 6   Date Filed: 08/06/2019



                                   No. 19-10591
unlikely that she would abide by any conditions of release, see § 3148(b)(2)(B),
is an abuse of discretion. We disagree.
      At Stuart’s detention hearing, her counsel was given an opportunity to
argue that Stuart should be given another chance to abide by the conditions of
her pretrial release. Although the magistrate judge commended Stuart for her
honesty, she was not persuaded by her arguments. The magistrate judge
explained:
             I understand that you’ve been complying with your
             condition for two years. I understand that you have
             some physical issues. But when it comes down to it,
             this is the same violation that I just had. It was a use
             of a controlled substance that was not prescribed for
             you, a very addictive one, and it was a choice. In fact,
             that almost makes it worse, because it’s not a matter
             of addiction or disease. It was a conscious choice. And
             while you may have thought that that was your only
             choice or your best choice at the time, nevertheless, it
             was a choice. And I think I was very clear on the
             consequences of not following those conditions, and to
             not follow through with that would be to treat you
             differently from other people in your same situation
             who appear before me under these circumstances. So I
             can’t find that you’re going to start following your
             conditions now. You've violated your conditions
             knowingly. So, for that reason, I am revoking your
             conditions of release[.]

Likewise, in affirming the detention order, the district court reasoned:
             When [Stuart] was placed on supervised pretrial
             release on February 28, 2017, [Stuart] signed the
             Order setting her conditions, acknowledging her
             understanding of the conditions and of the penalties
             for not complying with the conditions . . . Still, [Stuart]
             used a controlled substance for which she did not have
             a prescription. Because [Stuart] violated the
             conditions of her release even though she understood
             the consequences of doing so, the Court finds that she

                                          6
    Case: 19-10591    Document: 00515064800     Page: 7   Date Filed: 08/06/2019



                                 No. 19-10591
            is unlikely to comply with the conditions or any
            amended conditions in the future.

As the magistrate judge aptly observed, Stuart’s violation of her pretrial
release conditions was no different from many of her admitted violations
forming the factual predicate of her guilty plea offense—her unauthorized use
of a controlled substance. That she is a single mother of a teenage daughter
should have motivated her to abide by the conditions of her pretrial release,
rather than, as she argues on appeal, constitute a reason for the district court
to overlook her noncompliance. The district court did not abuse its discretion
in denying Stuart’s motion to revoke her detention order. See Hare, 873 F.2d
at 798.
                               IV. Conclusion
      The district court’s order denying Stuart’s motion for revocation of her
detention order is AFFIRMED.




                                       7
