     Case: 12-20140       Document: 00512206732         Page: 1     Date Filed: 04/12/2013




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

                                                                            FILED
                                                                           April 12, 2013
                                     No. 12-20140
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RHONDA FLEMING,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CR-513-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Rhonda Fleming, now federal prisoner # 20446-009, appeals the district
court’s denial of her second motion for new trial based on newly discovered
evidence. A jury found Fleming guilty of one count of conspiring to commit
health care fraud and wire fraud, 35 counts of aiding and abetting health care
fraud, 10 counts of aiding and abetting wire fraud, 15 counts of concealing
money laundering, and five counts of engaging in monetary transactions in
property derived from specified unlawful activity, and the district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20140     Document: 00512206732      Page: 2   Date Filed: 04/12/2013

                                  No. 12-20140

sentenced her to a total term of 360 months in prison and three years of
supervised release. This court affirmed the judgment. United States v. Arthur,
432 F. App’x 414 (5th Cir. 2011).
      The district “court may vacate any judgment and grant a new trial if the
interest of justice so requires.” FED. R. CRIM. P. 33(a). We review the denial of
a motion for a new trial for an abuse of discretion. United States v. Piazza, 647
F.3d 559, 564 (5th Cir. 2011).
      Fleming moved for a new trial based on newly discovered evidence “that
[she] was medicated during trial in violation of [her] right to due process, both
because the medication was without medical need and also because it was
involuntary.” A panel of this court found on direct appeal that Fleming’s due
process claim failed because she “voluntarily agreed to take her medication as
a condition of being allowed to proceed pro se.” Arthur, 432 F. App’x at 428
(emphasis added). Thus, due process did not require a determination whether
the medication was medically appropriate. Cf. Sell v. United States, 539 U.S.
166, 179-82 (2003) (holding that defendants have a due process right to avoid the
involuntary administration of antipsychotic drugs absent a finding, inter alia,
that the drugs administered were medically appropriate).
      The district court did not err in concluding that Fleming’s claims related
to her competency to stand trial had been “raised before, and rejected by, the
court of appeals on direct appeal.” Fleming did not present with her motion for
a new trial any evidence material to the question whether her right to due
process was violated. See Sell, 539 U.S. at 179-80. Accordingly, the district
court did not abuse its discretion in denying her motion for a new trial. See
Piazza, 647 F.3d at 564.
      The district court’s denial of the second motion for a new trial is
AFFIRMED. Fleming’s motions for release on bail pending the disposition of
this appeal, for a remand to the district court for a proffer hearing on her motion
for a new trial, and for a ruling on her motion for release are DENIED as moot.

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