     Case: 14-20392      Document: 00513241399         Page: 1    Date Filed: 10/21/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-20392
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 21, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

GWENDOLYN CLIMMONS-JOHNSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-245-1


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Gwendolyn Climmons-Johnson was convicted by a jury of one count of
conspiring to commit health care fraud and four counts of committing health
care fraud, in violation of 18 U.S.C. §§ 1347, 1349 and 2, and she was sentenced
to 97 months of imprisonment on each count, to run concurrently, and to
concurrent, three-year terms of supervised release. The charges related 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-20392     Document: 00513241399       Page: 2   Date Filed: 10/21/2015


                                   No. 14-20392

activities of Urgent Response Emergency Medical Services, LLC (Urgent
Response), an ambulance company owned and operated by Climmons-Johnson.
      On appeal, Climmons-Johnson argues that the district court reversibly
erred in admitting into evidence Government exhibit 2, which contained
electronic claims data submitted by Urgent Response to Medicare, and
Government exhibit 4, which consisted of signature cards for her personal bank
accounts, as well as Government summary exhibits 90, 91, 92, 93, and 95,
which were based upon exhibits 2 and 4. She also argues that the district court
erred in refusing to provide a timely instruction to the jury that the failure to
comply with civil rules and regulations does not establish criminal liability.
      With respect to Government exhibits 2 and 4, Climmons-Johnson argues
that the Government failed to lay a foundation or to demonstrate that the
evidence qualified as business records or that any other hearsay exception
applied. Because she did not object in the district court to the admission of
these exhibits on the same grounds that she raises on appeal, our review is for
plain error only. See United States v. Burton, 126 F.3d 666, 671 (5th Cir. 1997).
To prevail, she must show a forfeited error that is clear or obvious and that
affects her substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If she makes such a showing, we have the discretion to correct the
error, but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. See id.
      The district court committed no clear or obvious error in admitting
Government exhibits 2 and 4. See Puckett, 556 U.S. at 135.              Given that
Climmons-Johnson’s challenge to the five summary exhibits is based on the
premise that exhibits 2 and 4 were inadmissible, the district court likewise
committed no clear or obvious error in admitting the five summary exhibits.
See id.



                                         2
    Case: 14-20392     Document: 00513241399      Page: 3   Date Filed: 10/21/2015


                                  No. 14-20392

      Finally, although she argues that the district court reversibly erred by
failing to give a requested jury instruction at the time it was initially
requested, the district court did not abuse its discretion. After a Government
witness testified that “[a]ll providers who report services for Medicare payment
must fully understand and follow all existing laws, regulations and rules for
Medicare payment for nonemergency ground ambulance services and must
properly submit only valid claims for them,” Climmons-Johnson requested that
the district court give an instruction to the effect that any violation of Medicare
civil rules and regulations was not proof of fraud but could be considered to
determine the intent of the party.
      Although the district court denied the request when Climmons-Johnson
initially requested it, the district court gave the requested instruction on the
next day of trial and again at the conclusion of trial. The district court also
specifically admonished the jury that the instruction applied not only to future
evidence but to evidence that it had already heard. Jurors are presumed to
follow their instructions. See Richardson v. Marsh, 481 U.S. 200, 206 (1987).
The timing of the instruction did not constitute an abuse of the district court’s
discretion. See United States v. Livingston, 816 F.2d 184, 192 (5th Cir. 1987).
      AFFIRMED.




                                        3
